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.  
Const.P.76/2007, etc. 
 
2 
 
 
 
 
Versus 
 
Federation of Pakistan, etc.  
 
… 
… 
Respondents. 
 
 
For the petitioners  
: 
Mr. Abdul Hafeez Pirzada, Sr. ASC.  
 
 
 
 
 
Mr. Salman 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) 
Const.P.76/2007, etc. 
 
3 
 
 
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 
 
 
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, 
 
 
 
 
 
Secretary General 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. 
Const.P.76/2007, etc. 
 
4 
 
 
Dates of hearing   
: 
07th -10th & 14th - 16th December, 2009. 
 
 
 
 
 
JUDGMENT 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – 
Constitution Petition Nos. 76 to 80 of 2007 and 59 of 2009 
have been filed, challenging the constitutionality of the 
National Reconciliation Ordinance, 2007 [hereinafter referred 
to as “the NRO, 2007”], whereas Civil Appeal No. 1094 of 
2009 (by leave of the Court), has been filed against the order 
dated 15th January 2009, passed by High Court of Sindh in 
Constitution Petition No. 355 of 2008, whereby the benefit of 
the NRO, 2007 has been declined to the appellant. Similarly, 
in Human Right cases, the applicants have prayed that the 
benefit of the NRO, 2007 may also be extended to them.   
2. 
 
Brief facts, leading to filing of the listed petitions 
are that on 5th October 2007, the President of Pakistan 
[hereinafter referred to as “President”], while exercising his 
power under Article 89 of the Constitution of the Islamic 
Republic of Pakistan, 1973 [herein after referred to as “the 
Constitution”], promulgated the NRO, 2007 vide Ordinance 
No.LX of 2007.  
3. 
 
The above Ordinance came under challenge, 
immediately after its promulgation, before this Court, by 
Const.P.76/2007, etc. 
 
5 
invoking jurisdiction under Article 184(3) of the Constitution, 
in the listed Constitution Petitions, when, on 12th October 
2007, after hearing the learned counsel for the petitioners at a 
considerable length and examining the case law, the Court 
passed an order, which is reproduced hereinbelow:- 
 
“These petitions have been filed under Article 184(3) of the 
Constitution of Islamic Republic of Pakistan, 1973 [herein 
after referred to as “the Constitution”] challenging the 
National Reconciliation Ordinance, 2007 (No. LX of 2007) 
[herein after referred to as “the impugned Ordinance”].  
2. 
Mr. Salman Akram Raja, learned counsel appearing 
on behalf of petitioner in Constitution Petition No. 76 of 
2007 argued that:- 
a) 
Section 7 of the impugned Ordinance being 
self-executory 
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.  
b) 
Legislative judgment cannot be enacted by 
the Parliament. [ Smt. Indira Nehru Gandhi   
v.  Raj Narain (AIR 1975 SC 2299)]. 
c) 
By promulgating Section 7 of the impugned 
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. 
d) 
Impugned Ordinance exhorts about or 
indemnifies a 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 
Const.P.76/2007, etc. 
 
6 
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.      
e) 
The 
impugned 
Ordinance 
violates 
the 
provisions of Article 25 of the Constitution 
because it is not based on intelligible 
differentia, 
relatable 
to 
lawful 
objects, 
therefore, deserves to be struck down.  
f) 
The impugned Ordinance is against the 
public policy 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.  
g) 
Sub-sections (2) and (3) of Section 494 of 
Cr.P.C. 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 “Court” have been conferred 
upon the Review Boards of the Executive 
Bodies, therefore, these Sub-sections are also 
contrary to Article 175 of the Constitution.  
 
 
 
 
 
and 
 
No criteria has been laid down as to why the 
cases falling between the 1st day of January 
1986 to 12th day of October 1999 have been 
covered under these provisions, inasmuch 
as definition of political victimization has 
not been provided in these Sub-sections, 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. 
 
Const.P.76/2007, etc. 
 
7 
h) 
The 
impugned 
Ordinance 
has 
been 
promulgated 
in 
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. 
i) 
The provisions of impugned Ordinance are 
so 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.  
j) 
The provisions of Sections 4 and 5 of the 
impugned 
Ordinance 
are 
highly 
discriminatory in nature, therefore, are 
liable to be struck down.  
k) 
Section 6 of the impugned Ordinance is 
contrary to the 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. [Facto Belarus 
Tractor Ltd.   v.  Government of Pakistan 
(PLD 2005 SC 605)]. Hence, provisions of 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 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 :- 
i) 
The 
impugned 
Ordinance 
is 
purpose 
specific 
and 
period 
specific, 
therefore, 
violates Article 25 of the Constitution.  
Const.P.76/2007, etc. 
 
8 
4. 
Dr. 
Farooq 
Hassan, 
Sr. 
ASC 
appearing 
in 
Constitution Petition No. 78 of 2007 on behalf of petitioner, 
while adopting the arguments raised by Mr. Salman 
Akram Raja, ASC contended that:- 
i) 
The impugned Ordinance is contradictory to 
and 
violative 
of 
the 
United 
Nation’s 
Convention Against Corruption, enacted in 
2005 and ratified by Pakistan on 31st of 
August 2007. 
ii)  
Under the Constitution, no indemnity or 
amnesty can at all be given to any one, 
except granting pardon in terms of Article 
45 of the Constitution.  
iii)  Sections 2, 4, 5 and 6 of the impugned 
Ordinance are violative of the doctrine of 
trichotomy of powers.  
iv)  The impugned Ordinance has in fact 
changed 
the 
basic 
structure 
of 
the 
Constitution. 
v)  The impugned Ordinance has also violated 
the 
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:- 
a) 
The 
impugned 
Ordinance 
has 
been 
promulgated on the basis of personal 
satisfaction of the President of Pakistan but 
for extraneous reasons and to provide 
Const.P.76/2007, etc. 
 
9 
indemnity/immunity to the public office 
holders, therefore, is liable to be struck 
down.  
7. 
Learned counsel appearing in Constitution Petition 
Nos. 76, 77 and 78 of 2007 prayed for suspension of 
operation of Sections 6 and 7 of the impugned Ordinance 
as according to their apprehension, both these Sections 
contain self-executory powers, therefore, if allowed to 
continue, the very object of filing of petitions will be 
frustrated because of extension of benefit to a public office 
holder, who intends to derive benefit out of the same.  
8. 
It has been pointed out to them that ordinarily the 
provisions of a law cannot be suspended because this 
Court can only suspend a particular order, judgment or 
action, etc.  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.  
9. 
Issue notices to the respondents as well as to 
Attorney General for Pakistan as required in terms of 
Order XXVIIA CPC and Order XXIX Rule 1 of the Supreme 
Court 
Rules, 
1980. 
As 
important 
questions 
of 
public/national interest have been raised in these petitions, 
therefore, a request be sent to Mian Allah Nawaz, ASC 
(former Chief Justice of Lahore High Court), Mr. Shaiq 
Usmani (former Judge of Sindh High Court) and Mr. M. 
Sardar Khan, former Attorney General for Pakistan, to 
appear and assist the Court as amicus curiae.  
Const.P.76/2007, etc. 
 
10 
 
Let these petitions be set for hearing for a date after 
three weeks.” 
  
4. 
 
Here it comes the episode of 3rd November 2007,  
when General Pervez Musharraf, the then President and also 
the Chief of Army Staff, proclaimed emergency in the 
country by means of Proclamation of Emergency Order, 2007 
and apart from issuing Provisional Constitution Order, 2007, 
also issued Oath of Office (Judges) Order, 2007 and under the 
garb of these unconstitutional instruments, the Judges of 
Supreme Court, including Chief Justice of Pakistan, were 
restrained to perform their constitutional functions and many 
of them were put under house arrest, whereas, Abdul 
Hameed Dogar (the then Judge of this Court) took the oath of 
the office of Chief Justice of Pakistan along with four other 
Judges, out of eighteen Judges of this Court, on the same day 
i.e. 3rd November 2007.  
5. 
 
It is pertinent to note that by means of Article 5 
(1) of the Provisional Constitution Order, 2007 dated 3rd 
November 2007 and then under Article 270AAA of the 
Constitution, 
inserted 
through 
the 
Constitution 
(Amendment) Order, 2007, all the laws including the 
Ordinances, issued by the then President, which were in 
force at the time of revocation of the proclamation of 
Const.P.76/2007, etc. 
 
11 
emergency, were provided permanency, as a result whereof 
the NRO, 2007 was also declared to be a permanent law.   
6. 
 
On 6th February 2008, instant petitions were fixed 
before a Bench, comprising unconstitutional Chief Justice and 
four other Judges, when, on the request of the counsel, the 
same were adjourned for a date in office during last week of 
February 2008. Again, these matters were taken up on 27th 
February 2008 by the same Bench, when Dr. Mubashir 
Hassan (petitioner in Const. P.76/2007) requested for 
adjournment of the case on the ground that his counsel Mr. 
Abdul Hafeez Pirzada, Sr. ASC is undergoing medical 
treatment abroad. However, the Court, while dismissing 
Constitution Petition Nos.78, 79 & 80/2007 for want of 
prosecution, adjourned the Constitution Petition Nos. 76 & 
77/2007, to a date in office, due to indisposition of the 
learned counsel but without providing opportunity of 
hearing to the counsel for the petitioners and without issuing 
notices to amicus curiae, proceeded to modify order dated 
12th October 2007, to the following effect:-  
“The petitioners seek adjournment of these cases as 
their learned counsel (Mr. Abdul Hafeez Pirzada, Sr. 
ASC) is undergoing medical treatment abroad. 
2. 
On 
the 
other 
hand, 
Malik 
Muhammad 
Qayyum, learned Attorney General for Pakistan has 
opposed the adjournment. He has further pointed out 
Const.P.76/2007, etc. 
 
12 
that in view of the provisions of Article 270-AAA of 
the Constitution of Islamic Republic of Pakistan, 1973 
and the detailed judgment passed by this Court in the 
case of Tikka Iqbal Muhammad Khan vs. General 
Pervez Musharraf (Constitution Petition No. 87 of 
2007), the National Reconciliation Ordinance (No.LX 
of 2007), herein after referred to as ‘the Ordinance’, 
would continue in force.  
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 Petition Nos.76-80 of 2007 
to the effect that “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” are 
deleted. 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.”      
 
7. 
 
It is to be noted that this Court vide judgment 
dated 31st July 2009, in the case of Sindh High Court Bar 
Const.P.76/2007, etc. 
 
13 
Association v.  Federation of Pakistan (PLD 2009 SC 879), 
declared the Proclamation of Emergency, 2007, Provisional 
Constitutional Order, 2007, Oath of Office (Judges) Order, 
2007, Provisional Constitution (Amendment) Order, 2007 and 
the 
Constitution 
(Amendment) 
Order, 
2007, 
to 
be 
unconstitutional, illegal and void ab initio. Consequently all 
the Ordinances (including the NRO, 2007) were shorn of the 
permanency, which was provided under Article 270AAA of 
the Constitution, as validated in Tikka Iqbal Muhammad 
Khan   v.   General Pervez Musharraf (PLD 2008 SC 178). 
But the Court, while adhering to the doctrine of 
constitutional trichotomy, referred the NRO, 2007 along with 
other Ordinances, to the Parliament for consideration to 
make them Act of the Parliament, or the Provincial 
Assemblies, as the case may be, with retrospective effect. The 
relevant paras from the said judgment are reproduced 
hereinbelow for ready reference:-    
“186. Proclamation of Emergency and PCO No. 1 of 
2007 having been declared unconstitutional and void 
ab initio and the validity purportedly conferred on all 
such Ordinances by means of Article 270AAA and by 
the judgment in  Tikka Iqbal Muhammad Khan’s case 
also having been shorn, such Ordinances would 
cease to be permanent laws with the result that the 
life of such Ordinances would be limited to the 
period specified in Articles 89 and 128 of the 
Const.P.76/2007, etc. 
 
14 
Constitution, viz., four months and three months 
respectively from the date of their promulgation. 
Under Article 89 of the Constitution, an Ordinance 
issued by the President, if not so laid before the 
National Assembly, or both Houses of Parliament, 
stands repealed on expiration of four months from its 
promulgation. Similarly, under Article 128 of the 
Constitution, an Ordinance issued by the Governor, if 
not so laid before the concerned Provincial Assembly, 
stands repealed on expiration of three months from 
its promulgation.   
187. 
It may be noted that such Ordinances were 
continued in force throughout under a wrong notion 
that they had become permanent laws. Thus, the fact 
remains that on the touchstone of the provisions of 
Articles 89 and 128 read with Article 264 of the 
Constitution and section 6 of the General Clauses 
Act, 1897, only such rights, privileges, obligations, or 
liabilities would lawfully be protected as were 
acquired, accrued or incurred under the said 
Ordinances during the period of four months or three 
months, as the case may be, from their promulgation, 
whether before or after 3rd November, 2007, and not 
thereafter, until such Ordinances were enacted as 
Acts by the Parliament or the concerned Provincial 
Assembly with retrospective effect.   
188. 
In the light of the above, the question of 
validation of such Ordinances would be required to 
be decided by the Parliament or the concerned 
Provincial Assemblies. However, the period of four 
months and three months mentioned respectively 
in Articles 89 and 128 of the Constitution would be 
deemed to commence from the date of short order 
Const.P.76/2007, etc. 
 
15 
passed in this case on 31st July, 2009 and steps may 
be taken to lay such Ordinances before the 
Parliament or the respective Provincial Assemblies 
in accordance with law during the aforesaid 
periods. This extension of time has been allowed in 
order to acknowledge the doctrine of trichotomy of 
powers as enshrined in the Constitution, to 
preserve continuity, to prevent disorder, to protect 
private 
rights, 
to 
strengthen 
the 
democratic 
institutions and to enable them to perform their 
constitutional 
functions, 
which 
they 
were 
unconstitutionally and illegally denied under PCO 
No. 1 of 2007. Needless to say that any validation 
whether with retrospective effect or otherwise, shall 
always be subject to judicial review on the well 
recognized principles of ultra vires, non-conformity 
with the Constitution or violation of the Fundamental 
Rights, or on any other available ground.” (emphasis 
provided). 
 
8. 
 
It seems that the NRO, 2007 was laid before the 
National Assembly from where it travelled to the Standing 
Committee of the National Assembly on Law & Justice, 
where the matter was taken up in its meetings held on 29th & 
30th October 2009, and subsequently, it was again brought on 
the floor of the National Assembly from where it was 
withdrawn as is evident from the documents placed on 
record. Details in this behalf, if needed, shall be considered 
subsequently.    
Const.P.76/2007, etc. 
 
16 
9. 
 
These petitions remained pending in the office. In 
the meantime, another petition being, Civil Petition No.142-K 
of 2009 (now Civil Appeal No.1094/2009), was filed by one 
Fazal Ahmed Jat, praying therein that the benefit of the NRO, 
2007 extended to the other accused of or convicted under the 
National Accountability Ordinance, 1999 [herein after 
referred to as “the NAO, 1999”] be also extended to him. The 
Constitution Petition Nos. 78, 79 & 80 of 2007, on the request 
of petitioner and with the consent of learned Acting Attorney 
General for Pakistan were restored on 7th, 14th & 8th October 
2009, respectively. Meanwhile, Constitution Petition No. 59 
of 2009 was also filed, challenging the vires of the NRO, 2007. 
Human Right Case Nos.14328-P to 14331-P & 15082-P of 2009 
filed by several convicts, claiming the benefit of the NRO, 
2007 were also clubbed with the other petitions on the 
subject.   
10. 
 
In all the Constitution Petitions, almost same 
prayers have been made, however, for reference, prayer 
clause from one of the petitions i.e. Constitution Petition 
No.78 of 2007, filed by Qazi Hussain Ahmed, Amir Jamat-e-
Islami, is reproduced hereinbelow for convenience:- 
“The Ordinance entitled ‘National Reconciliation 
Ordinance, 2007’ be declared as being utterly 
unconstitutional and violate both the Constitution, 
Const.P.76/2007, etc. 
 
17 
law of the land, and International Treaties & the UN 
Law. 
It is further prayed that it be declared that the said 
Ordinance enacted on 5th October is contrary to Law 
and the Constitution as being mala fide, ultra vires and 
corum non judice and of no consequential effect ab 
initio. 
Any identical relief pendente lite due to the petitioner 
ex debito justitae be graciously granted.”   
11. 
 
In response to notices of hearing, no defence was 
put up on behalf of the Federation of Pakistan and others, 
including all the Federating Units as well as the National 
Accountability Bureau [herein after referred to as ‘the NAB’]. 
On 7th December, 2009, learned Acting Attorney General for 
Pakistan, however, placed on record a written statement 
before the Court, wherein significantly, in unambiguous 
terms, it was mentioned that “the Federation of Pakistan 
reiterates as repeatedly stated by the Prime Minister of Pakistan 
Syed Yousaf Raza Gillani that Seventeenth Amendment is not 
valid, as much as it violates the basic features of the Constitution. 
Therefore, as Parliamentary Committee of both the Houses is in the 
process of preparing its recommendations”. As far as the 
remaining clauses relating to supremacy of the Constitution 
and non-defending of the NRO, 2007 are concerned, same 
were incorporated therein as well. Accordingly, relevant 
Const.P.76/2007, etc. 
 
18 
contents of the letter and the stand of the Federating Units 
and the NAB were reduced in writing, during the hearing, 
which is reproduced hereinbelow:- 
“Mr. Shah Khawar, Acting Attorney General for 
Pakistan, who is otherwise appearing in response to 
notice under Order XXVII-A CPC, has placed on record 
a written statement on behalf of Federation of Pakistan, 
relevant 
paras 
wherefrom, 
being 
No. 
2&3, 
are 
reproduced hereinbelow:- 
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.  
2. 
Learned Advocates General of Sindh, NWFP & 
Balochistan, and Additional Advocate General Punjab, 
when enquired about their reaction in respect of 
statement, so filed by the Acting Attorney General for 
Pakistan, stated that they agree with the stance taken by 
the 
Federation 
of 
Pakistan. 
Learned 
Additional 
Prosecutor General NAB also adopted the above stance 
of the Federation of Pakistan.” 
 
12. 
 
During the course of hearing, Federation of 
Pakistan has submitted Civil Misc. Application Nos. 4875 & 
4898 of 2009, of identical nature, wherein attention of the 
Court was drawn towards its earlier judgment passed in 
Sindh High Court Bar Association’s case (PLD 2009 SC 879) 
and at pages 11 & 12 of the said applications, apprehension 
Const.P.76/2007, etc. 
 
19 
of destabilization of the system was expressed in the 
following terms:- 
“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 state 
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.”  
 
As in above statement apprehension of destabilization of the 
system has been expressed, therefore, Mr. Kamal Azfar, 
learned Sr. ASC, who had filed the Applications, referred to 
hereinabove, was called upon to submit an affidavit, 
clarifying the stand taken by him. Surprisingly, he, verbally, 
contended that “apprehension of destabilization of the 
democratic system is from GHQ and CIA”. The words so 
uttered by him are as follows:-  
“There are extra constitutional forces in Pakistan and 
outside Pakistan which are trying to destabilize this 
country. I say more openly, the dangers to Pakistan 
come from the CIA & GHQ.” 
Const.P.76/2007, etc. 
 
20 
 
The above statement on behalf of Federation was 
prominently noted by the leading newspapers. On the same 
day, learned Acting Attorney General once again made a 
categorical statement of accepting the decision, whatsoever, 
will be recorded by this Court. His such statement has also 
been recorded vide order dated 15th December, 2009, which is 
reproduced hereinbelow for convenience:- 
“Learned Attorney General for Pakistan has 
concluded his submissions, while reiterating his 
stand, taken on the first day of hearing that the 
Federal Government is not defending the NRO.  
……...” 
 
On the next date of hearing, another written statement was 
filed by Mr. Kamal Azfar, learned Sr. ASC, which reads as 
follows:- 
“STATEMENT 
 
In 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. 
Const.P.76/2007, etc. 
 
21 
(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.” 
 
The above statement, filed on behalf of Federation of 
Pakistan, has disclosed the intention of Federation of 
Pakistan, particularly to the effect that those who have 
acquired benefit under the NRO, 2007 should be proceeded 
against under the relevant laws, before the Courts of 
competent jurisdiction, as factually matters need to be 
determined by the Trial Court. Learned Acting Attorney 
General for Pakistan and learned counsel appearing for 
Const.P.76/2007, etc. 
 
22 
Federation of Pakistan have reiterated this stand, time and 
again, during the course of hearing. 
13. 
 
Mr. Salman Akram Raja, ASC for the petitioner in 
Constitution Petition No. 76 of 2007, submitted as under:- 
a) 
‘Reconciliation’ is not a new phenomenon, 
as the same has been adopted in various 
jurisdictions of the World, going back right 
from the Fatah-e- Makkah, when a general 
amnesty was announced by the Holy 
Prophet (PBUH) for the people of Makkah, 
till 1995 when the same was provided in 
South 
Africa 
through 
Promotion 
of 
National Unity and Reconciliation Act of 
1995. Although, in the NRO, 2007 the word 
‘national reconciliation’ has been borrowed 
from the history but it has nothing to do 
with it, in any sense. 
b) 
Section 7 of the NRO, 2007 is patently 
discriminatory on the ground that it has 
created unreasonable classification between 
the ‘holders of public office’ and the general 
public 
and 
then 
further 
created 
classification amongst the ‘holders of public 
office’ on the basis of time period, therefore, 
being promulgated in colourable exercise of 
legislative power, it is tantamount to malice 
in law. 
c) 
The classifications made through the NRO, 
2007 are overbroad as a wide array of 
Const.P.76/2007, etc. 
 
23 
persons including politicians, bureaucrats, 
Army personnel and others have been 
included in it under the label of ‘holders of 
public office’. It is inclusive on the basis of 
time specification, as it does not cover the 
cases/ proceedings initiated after 12th 
October 2007, as such, having irrational 
classification is liable to be struck down.   
d) 
The NRO, 2007 provides indemnity and 
potential cover to a particular class of 
persons 
involved 
in 
criminal 
cases 
including the ‘holders of public office’ from 
the operation of law by withdrawing cases 
and termination of proceedings pending 
against them. This is tantamount to an 
affirmative action in favour of elite class.    
e) 
Section 7 of the NRO, 2007 is self executory 
provision, which took effect on its own 
terms, with effect from 5th October 2007. 
f) 
The NRO, 2007 although has lapsed on the 
expiry of its constitutional life but its effect 
is likely to remain intact, therefore, it has to 
be declared void ab initio and nullity in the 
eye of law.  
g) 
The preamble of the NRO, 2007 is not in 
consonance with the text of the statute and 
do not reconcile with each other. [reliance 
placed on the cases of Abdul Baqi v. 
Muhammad Akram (PLD 2003 SC 163) and 
Const.P.76/2007, etc. 
 
24 
Ghulam Mustafa Insari  v.  Govt. of the 
Punjab (2004 SCMR 1903)]. 
h) 
The NRO, 2007 is time specific as it has 
created further classification amongst its 
subject i.e. period commencing from 1st 
January 1986 to 12th October 1999, therefore, 
being not based on intelligible differentia 
relatable to lawful object, is violative of 
Article 25 of the Constitution and is liable to 
be struck down. [reliance placed on the case 
of Govt. of Balochistan   v.   Azizullah 
Memon (PLD 1993 SC 341)]. 
i) 
The provisions of Section 2 of the NRO, 
2007 provides benefit to the persons 
involved in the cases of murder, rape, 
kidnapping for ransom and Hudood cases, 
therefore, it is ultra vires to Article 2A of the 
Constitution 
being 
violative 
of 
the 
Injunctions of Islam. 
j) 
In view of Section 494 Cr.P.C., the 
permission to withdraw cases has to be 
given by the Court judiciously after due 
application of mind. By means of Section 2 
of the NRO, 2007 sub-Sections (2) & (3) 
have been added in Section 494 Cr.P.C., 
whereby judicial powers of the Court have 
been vested in a Review Board (Executive 
body), which amounts to usurping such 
power of the Court, therefore, Section 2 of 
the NRO, 2007 is liable to be struck down 
Const.P.76/2007, etc. 
 
25 
being violative of Article 175 of the 
Constitution, 
regarding 
separation 
of 
powers between Executive and Judiciary. 
[reliance placed on the cases of Mehram Ali  
v.   Federation of Pakistan (PLD 1998 SC 
1445), Bihar v. Ram Naresh Pandey (AIR 
1957 SC 389), Rahul Agarwal v. Rakesh 
Jain {(2005) 2 SCC 377=AIR 2005 SC 910}, 
Liyanage  v.  The Queen {(1967) 1AC 259}, 
& Brandy  v. Human Rights Commission 
(183 CLR 245)]. 
k) 
The NRO, 2007 is a special law, which 
cannot purport to amend the general law 
i.e. Cr.P.C., therefore, such attempt is not 
allowable. It is also against the principle 
that a temporary law cannot amend the 
permanent law, as the maximum life of an 
Ordinance is 120 days and no amendment 
can survive beyond that period and lapses 
with the lapse of temporary legislation. 
[reliance 
placed 
on 
the 
cases 
of 
Government of Punjab  v.  Zia Ullah Khan 
(1992 SCMR 602) & Shabir Shah v. Shad 
Muhammad Khan (PLD 1995 SC 66)].  
l) 
Section 7 of the NRO, 2007 whereby the 
cases and proceedings pending against the 
‘holders of public office’ have been declared 
to 
stand 
withdrawn 
and 
terminated, 
amounts to legislative judgment, as such it 
is 
violative 
of 
the 
principles 
of 
Const.P.76/2007, etc. 
 
26 
independence of Judiciary and separation 
of powers as enshrined in Article 175 of the 
Constitution because it is impermissible 
intrusion in the domain of the judiciary. 
[reliance placed on the cases of Govt. of 
Balochistan   v.   Azizullah Memon (PLD 
1993 SC 341) & Smt. Indra Nehru Gandhi   
v.  Raj Narain (AIR 1975 SC 2299)]. 
m) 
Section 3 of the NRO, 2007 whereby the 
Representation of the People Act, 1976 has 
been amended, has no relevancy with the 
preamble of the NRO, 2007. 
n) 
Sections 4 & 5 of the NRO, 2007 whereby 
the sitting members of the Parliament and 
Provincial Assemblies have been provided 
protection 
from 
arrest, 
without 
recommendations of Special Parliamentary 
Committee on Ethics, are no more in field, 
after expiry of the constitutional life of the 
NRO, 2007.  
o) 
Section 6 of the NRO, 2007 whereby the 
orders or judgments passed by the Courts 
against an accused in absentia have been 
declared to be void ab initio and not to be 
acted upon, amounts to create a permanent 
hindrance 
in 
Article 
63(1)(p) 
of 
the 
Constitution, as through the amendment in 
Section 31A of the NAO, 1999, certain 
persons, who were kept out of the 
Const.P.76/2007, etc. 
 
27 
Parliament have been allowed to enter into 
the Parliament.  
p) 
Section 7 of the NRO, 2007 also defeats the 
provision 
of 
Article 
62(f) 
of 
the 
Constitution, as all the persons, against 
whom the cases or proceedings have been 
withdrawn or terminated would claim to be 
righteous and Ameen. 
q) 
The provisions of the NRO, 2007 i.e. 
Sections 6 & 7, are contrary to the basic 
principle 
relating 
to 
annulment 
of 
judgments, because the proceedings, orders 
or judgments passed by the competent 
Court in accordance with the existing law in 
favour of a party, cannot be annulled 
through a legislative instrument unless the 
law, 
underlying 
the 
basis 
of 
such 
proceedings, orders and judgments, will be 
removed. [reliance placed on the case of 
Fecto Belarus Tractor Ltd.  v. Government 
of Pakistan (PLD 2005 SC 605)]. 
r) 
The 
NRO, 
2007 
exhorts 
about 
or 
indemnifies a particular class of persons 
including the ‘holders of public office’, from 
proceedings, actions and orders passed by 
the competent authorities whereas neither 
the legislature nor the executive has power 
to grant pardon by promulgation of an 
instrument or an Act of amnesty, except the 
power of the President to grant such 
Const.P.76/2007, etc. 
 
28 
pardon to an accused person under Article 
45 of the Constitution. Such indemnity or 
protection under the NRO, 2007 cannot be 
equated with the pardon.    
He concluded his arguments while stating that the NRO, 
2007 is bad in the eye of law whereby judicial functions have 
been vested in an executive body arbitrarily; it is, ex facie, 
might not be discriminatory but in fact it is discriminatory, 
promulgated in total violation of the constitutional 
provisions by the lawmaker, with mala fide intention. If it is 
allowed to remain on the statute book, it will be a permanent 
blot on conscience of nation. 
14. 
 
Mr. Abdul Hafeez Pirzada, Sr. ASC also appeared 
on behalf of petitioner in Constitution Petition No. 76 of 2007 
and submitted his formulations as under:- 
a) 
The NRO, 2007 is, as a whole, void ab initio, 
non est and never took birth, therefore, 
nothing, which is the product of this 
Ordinance, or done in pursuance of this 
Ordinance or under it, ever came into 
existence or survived. 
b)  
The NRO, 2007 is void because it is a fraud 
on the Constitution and transience well 
beyond the limited legislative power 
conferred by Article 89 of the Constitution 
Const.P.76/2007, etc. 
 
29 
on the President, as the President cannot go 
beyond the limits circumscribed therein. 
c) 
Word “reconciliation” has been defined in 
number of dictionaries but when the word 
‘national’ is prefixed with it, its meaning 
becomes entirely different and it means 
“the reconciliation of the whole nation”. 
The NRO, 2007 has no nexus with the 
‘national 
reconciliation’ 
rather 
it 
has 
trampled over the fundamental rights of the 
entire nation of Pakistan. [referred to the 
concluding part of the Preamble of the 
Constitution to define the word ‘national 
reconciliation’]. 
d) 
The NRO, 2007 is ex facie void for the 
reason that surprisingly its operation has 
been 
confined 
to 
a 
specific 
period 
commencing from 1st January 1986 to 12th 
October 1999.  
e) 
The NRO, 2007 is void ab initio because it 
violates the dictum laid down by this Court 
in 
Mahmood 
Khan 
Achakzai 
 
v.  
Federation of Pakistan (PLD 1997 SC 426), 
improved upon in Zafar Ali Shah  v.  
General Pervez Musharraf (PLD 2000 SC 
869), wherein, after a great deal of efforts 
the Court virtually treated Article 4 of the 
Constitution as ‘due process clause’.  
Const.P.76/2007, etc. 
 
30 
f) 
The 
four 
salient 
features 
of 
the 
Constitution, identified in the judgments of 
this Court are; Parliamentary form of 
Government; Federating character of the 
State; Independence of Judiciary; and 
Fundamental Rights of the people along 
with 
Islamic 
provisions. 
Even 
the 
Parliament has no power to alter these 
salient features of the Constitution. The 
NRO, 2007 is clear invasion on the 3rd pillar 
of the State i.e. judiciary, without which the 
modern society cannot exist. [reliance 
placed on the case of Zafar Ali Shah (PLD 
2000 SC 869)].   
g) 
The NRO, 2007 is not only usurpation of 
judicial powers but also usurpation of 
constitutional powers of the Parliament.  
h) 
The NRO, 2007 has directly violated and 
overridden the provisions of Articles 62 & 
63 of the Constitution. It vitally affects the 
democratic 
rule 
in 
the 
country, 
by 
tampering 
and 
interfering 
with 
the 
qualifications and disqualifications of a 
candidate to be elected or chosen as a 
member of the Parliament and subsequent 
disqualification after having become the 
member of the Parliament.  
 
 
 
 
AND 
 
The Article 62 of the Constitution applies 
only at the time of filing of nomination 
Const.P.76/2007, etc. 
 
31 
papers or contesting elections, however, 
Article 63 of the Constitution continues to 
be in force even after a candidate has been 
elected as a member of the Parliament and 
he can be removed by the writ of quo 
warranto, by the Speaker of the National 
Assembly through reference or by the Chief 
Election Commissioner. This Court in 
number 
of 
judgments 
has 
held 
that 
conviction awarded in absentia is void, but 
this view needs to be revisited on the 
touchstone of Article 63(1)(p) of the 
Constitution because how a person can 
become a member of the Parliament if he is 
an absconder.   
i)  
Through the promulgation of the NRO, 
2007, the conscience of the Constitution has 
been 
divorced. 
There 
are 
mixed 
constitutional and moral aspects and one 
cannot divorce the morality from the 
Constitution. [reliance placed on the cases 
of 
R.S.Jhamandas 
v. 
Chief 
Land 
Commissioner (PLD 1966 SC 229) and 
Benazir Bhutto  v.  Federation of Pakistan 
(PLD 1988 SC 416)].  
 
j) 
Even a validly enacted Ordinance does not 
necessarily have to have the statutory life of 
120 days because before the expiry of the 
same, the National Assembly can strike it 
down through a resolution. In the case of 
Const.P.76/2007, etc. 
 
32 
NRO, 2007 the National Assembly has 
refused to own this law, even after expiry of 
its statutory life and this is tantamount to 
its rejection by the Parliament.  
k) 
The Constitution envisages for trichotomy 
of powers between the executive, legislative 
and judicial organs of the State. The NRO, 
2007 is a clear intrusion by the legislature 
into the sphere of the judiciary, as such 
liable to be struck down being violative of 
doctrine of trichotomy of powers. 
l) 
The 
Judiciary 
is 
custodian 
of 
the 
Constitution and the fundamental rights. It 
is the superior observer of what is 
happening and to see that there is no 
transgression in the separation of power. It 
has its legal obligation, based upon the 
principle of checks and balances. That is 
why the Judiciary has not been made part 
of the State under Article 7 of the 
Constitution, which has to be read with 
Article 175 of the Constitution. 
m)  
The preamble of the NRO, 2007 poses the 
official avowed reason to promulgate this 
Ordinance, which is not the real object 
behind its promulgation as it was a deal 
between two persons, for their personal 
objectives 
and 
even 
the 
persons 
representing the people of Pakistan at that 
time in the Parliament, were not made 
Const.P.76/2007, etc. 
 
33 
aware of it. Therefore, it cannot be said a 
‘national reconciliation’ as there is total 
variance between the opening statement 
and the contents of the Ordinance.  
n) 
The Constitution does not make an 
Ordinance a permanent law unless it is 
made an Act of Parliament. Applying the 
principle enshrined in Section 6 of the 
General Clauses Act, 1897, there are two 
types of repeals; first one is ‘deeming 
repeal’ and the other is ‘actual repeal’ and 
this Court has to consider both of them 
accordingly. Therefore, in order to save an 
Ordinance, the law has to be enacted 
retroactively by the Parliament. But, this 
Court could not extend the life of the 
Ordinance beyond the constitutional life i.e. 
120 days. More so, since the Article 
270AAA of the Constitution has been 
declared null and void by means of 
judgment in Sindh High Court Bar 
Association’s case (PLD 2009 SC 879),  the 
NRO, 2007 has lost its permanency, 
provided by the said Article.  
o) 
The Executive has to act intelligently and 
responsibly in classifying actions, which 
ought to be saved under temporary law, 
particularly when fundamental rights are 
involved. The NRO, 2007 is a ‘bill of 
attainder’ against the people of Pakistan 
Const.P.76/2007, etc. 
 
34 
which violates their fundamental rights 
enshrined in the Constitution and the spirit 
of Article 4 of the Constitution has been 
destroyed, which has been equated with the 
‘due process clause’. [reliance placed on the 
case of Jamat-i-Islami Pakistan   v.  
Federation of Pakistan (PLD 2000 SC 111)].  
Learned counsel concluded his arguments. However, when 
questioned about the consequences, in case the Court 
ultimately comes to the conclusion that the NRO, 2007 is void 
ab initio being ultra vires the Constitution, he replied that the 
consequence would be that the beneficiaries of the NRO, 2007  
shall be relegated to the position as prevailing on 4th October 
2007, prior to promulgation of the NRO, 2007. 
15. 
 
Dr. Mubasher Hassan (petitioner in Constitution 
Petition No. 76/2007) appeared and stated with special 
permission of the Court that when the two organs of the 
State, as defined in Article 7 of the Constitution, become 
incapable of performing their duties entrusted to them under 
the Constitution, it is incumbent upon the third organ i.e. 
judiciary to come forward for rescue of the State. 
16. 
 
Mr. Ikram Chaudhry, ASC for the petitioner in 
Constitution Petition No. 77 of 2007, appeared and argued 
that:- 
Const.P.76/2007, etc. 
 
35 
a) 
The NRO, 2007 is person specific, purpose 
specific and period specific, therefore, it 
violates the provisions of Article 25 of the 
Constitution. 
b) 
The 
Judiciary 
has 
been 
vested 
with 
important function of supervising the other 
organs of the State that is why Article 7 of 
the Constitution purposely excluded it from 
the definition of the State. 
c) 
The primacy and supremacy of the Chapter 
of fundamental rights remain the salient 
feature of the Constitution and when laws 
are examined on the touchstone of various 
provisions of the Constitution, Article 8 
comes into play which provides that any 
law inconsistent with or in derogation of 
fundamental rights is void.  
d) 
The NRO, 2007 does not meet the criterion, 
laid down in Article 89 of the Constitution, 
particularly with regard to ‘satisfaction’ of 
the President, which should always be fair, 
just and never arbitrary, therefore, the 
NRO, 2007 having inherent mischief in it, as 
it conceives to protect the interest of a 
particular person, is a bad law. 
e) 
Article 89 of the Constitution does not save 
the President from its intents and the 
purposes as in view of Article 5 of the 
Constitution he is bound to follow the law. 
Const.P.76/2007, etc. 
 
36 
Therefore, the promulgation of the NRO, 
2007 is clear violation of Article 4 & 25 of 
the Constitution. [reliance placed on the 
case of Jibendra Kishore, etc.  v.  Province 
of East Pakistan (PLD 1957 SC 9)]. 
 
While concluding his arguments he referred to ‘United 
Nations Convention Against Corruption’, ‘Al-Farooq’ by 
Allama Shibli Noumani, ‘Grammar of Politics’ by Harold J. 
Laski, ‘Spirit of Liberty, Papers & Addresses of Learned 
Hand’ by Irving Dilliard, ‘The Supreme Court, America’s 
Judicial Heritage’ by Patricia C. Acheson. He lastly argued 
that if the Court comes to the conclusion that the impugned 
Ordinance is bad law, then the consequential relief would be 
the restoration of all the cases to their original stage. 
17. 
 
Dr. Farooq Hassan, Sr. ASC appearing for the 
petitioner, in Constitution Petition No.78 of 2007, submitted 
his written formulations, while adding that:-  
a) 
The NRO, 2007 is void being violative of the 
fundamental rights contained in Article 25, 
9 and possibly Articles 14, 24, 2 & 2A of the 
Constitution. 
b) 
The NRO, 2007  is the result of abuse of 
power, mala fides, and corum-non-judice as 
its objects are clearly outside the purview of 
Const.P.76/2007, etc. 
 
37 
ordinary and normal law making authority 
of the President under Article 89 of the 
Constitution, as such it is void in entirety. 
c) 
The NRO, 2007 amounts to subversion of 
the Constitution as it is the result of a deal 
between the dictator and next set of rulers. 
[referred 
to 
clippings 
of 
different 
newspapers].    
d) 
The subject matter of the NRO, 2007 is not 
found in either of the Legislative lists 
provided 
in 
Fourth 
Schedule 
of 
the 
Constitution, as such it is ultra vires the 
Constitution. 
e) 
Under 
the 
International 
Treaties 
i.e. 
“United 
Nations 
Convention 
Against 
Corruption”, to which the Pakistan is also a 
signatory, no law can be passed which 
provides protection to corruption and 
corrupt practices.   
He concluded his arguments while saying that the property 
of the Government is the property of the people of Pakistan, 
which has been misappropriated by the persons to whom 
protection has been provided under the NRO, 2007 therefore, 
it is liable to be struck down. 
18. 
 
Mr. Tariq Asad, ASC for the petitioners in 
Constitution Petition No. 80 of 2007 argued that Article 89 of 
the Constitution referred to ‘satisfaction’ of the President 
Const.P.76/2007, etc. 
 
38 
which would be either ‘subjective’ or ‘objective’. On the basis 
of material, available on record, there were no such 
circumstances to promulgate the NRO, 2007 therefore, the 
‘subjective’ satisfaction of the President is missing, as such it 
becomes the ‘objective’ satisfaction, which is justiciable and 
subject to judicial review by the Court. [reliance placed on 
State of Rajasthan   v.  Union of India (AIR 1977 SC 1361), 
A.K. Roy   v.  Union of India (AIR 1982 SC 710) and also to 
definition of the words ‘satisfaction’ & ‘subjective’ from 
Black’s Law Dictionary]. 
19. 
 
Raja 
Muhammad 
Ibrahim 
Satti, 
Sr. 
ASC, 
appearing for appellant in Civil Appeal No. 1094 of 2009, 
while defending the NRO, 2007 made his submissions as 
follows:- 
a) 
It is nobody’s case that the President has no 
power to promulgate the Ordinance under 
Article 89 of the Constitution or the said 
Article is redundant.  
b) 
The NRO, 2007 was validly promulgated as 
the pre-conditions for promulgation of an 
Ordinance by the President, under Article 
89 of the Constitution were fulfilled.  
c) 
It is the duty of the Court to interpret the 
Constitution and to adjudge the validity of 
a law, whether proper assistance has been 
rendered or not. [reliance placed on 
Const.P.76/2007, etc. 
 
39 
Federation of Pakistan   v.  M. Nawaz 
Khokhar (PLD 2000 SC 26) & Ghulam 
Hassan  v.  Jamshaid Ali (2001 SCMR 
1001)]. 
d) 
During the statutory life of the NRO, 2007 
both the Houses of the Parliament did not 
disapprove it through any resolution and 
allowed it to continue, therefore, if the 
Court ultimately comes to the conclusion 
that it was validly enacted and the benefits 
derived from its operation are allowed to 
continue, then the appellant shall also be 
entitled for the same benefit. 
20. 
 
Mr. A.K. Dogar, learned Sr. ASC for the petitioner 
in Constitution Petition No. 59 of 2009, stated that his 
arguments are two fold i.e. on factual plane as well as on legal 
plane. On factual plane he argued that:- 
 
The NRO, 2007 is a power sharing deal 
between the then President and the head of 
a political party. [reliance placed on the 
books 
i.e. 
‘Reconciliation, 
Islam, 
Democracy 
and 
the 
West’ 
by 
late 
Mohtarma Benazir Bhutto and ‘the Way of 
the World’ by Ron Suskind].  
On legal plane, he made the following submissions:- 
a) 
The NRO, 2007 is the result of abuse of 
‘public office’ for private gain.   
AND 
Const.P.76/2007, etc. 
 
40 
Because, corruption vitiates like fraud, 
which vitiates all transactions, therefore, the 
NRO, 2007 stands vitiated by the effect of 
abuse of public office for private gain. 
 
 
 
AND 
The NRO, 2007 is a document which is non 
est. It is like a still born which dies in 
mother’s wombs. [reliance placed on Zafar 
Ali Shah’s case (PLD 2000 SC 869) & 
Black’s law Dictionary for the definition of 
‘corrupt’]. 
b) 
Though Article 89 of the Constitution 
empowers the President to promulgate an 
Ordinance 
but 
Article 
48(1) 
of 
the 
Constitution provides that such power lies 
with the Prime Minister and his Cabinet, 
who have to advise the President, therefore, 
the President cannot in his individual 
capacity issue an Ordinance, or enter into 
some negotiations and then issue an 
Ordinance. [reliance placed on Tirathmal  
v. The State (PLD 1959 Karachi 594)].   
c) 
The Ordinance making power, vested in the 
President, is a legacy of the British Rule, 
because in both kinds of democracies i.e. in 
the Parliamentary form of Government in 
UK 
and 
the 
Presidential 
form 
of 
Government in America, such power does 
not exit. This power is anti-democratic and 
only provided in the Constitutions of 
Const.P.76/2007, etc. 
 
41 
Pakistan and India, who remained under 
the British rule for such a long period.    
d) 
Gen. 
Pervez 
Musharraf 
was 
not 
constitutionally elected President, therefore, 
within the meaning of Article 89 of the 
Constitution, he had no such power to issue 
such Ordinance because he seized power by 
force and was self imposed President 
through Legal Framework Order, 2002 and 
17th Amendment. [reliance placed on Sindh 
High Court Bar Association’s case (PLD 
2009 SC 879)]. 
e) 
By virtue of Article 264 of the Constitution, 
a law, which is repealed can give rise to 
rights and obligation but not a law which 
does not exist from its very inception (as 
per statement of learned Attorney General) 
and is still born, therefore, under the NRO, 
2007 no rights exist. 
f) 
This Court has no Ordinance issuing 
power, therefore, it could not give life to the 
NRO, 
2007 
which 
has 
lapsed 
on  
5th February 2008 and this Court, could only 
extend its time under the law of necessity 
and not otherwise. 
g) 
The 
circumstances 
mentioned 
in 
the 
preamble of the NRO, 2007 itself are of 
permanent nature and do not require any 
immediate, emergent and quick treatment.  
Const.P.76/2007, etc. 
 
42 
h) 
A law cannot be amended through the 
Ordinance because it is violation of Articles 
238 & 239 of the Constitution. 
i) 
Withdrawal from prosecution, as provided 
in Section 2 of the NRO, 2007 without 
hearing the complainants in the cases of 
murder, rape, etc. is violation of the 
principles of natural justice as such no such 
amendment can stay. [reliance placed on 
Zia Ullah Khan’s case (1992 SCMR 602)]. 
j) 
Section 4 of the NRO, 2007 by means of 
which immunity has been provided to 
sitting members of the Parliament from 
arrest, offends Articles 24 & 25 of the 
Constitution. 
k) 
Helping the rich and powerful persons, 
who have misappropriated millions of 
rupees, 
as 
against 
the 
victims 
of 
exploitation, is violation of Article 3 of the 
Constitution. 
l) 
With the advancement of civilizations, the 
moral 
and 
ethical 
codes 
have 
been 
converted 
into 
enforceable 
legal 
formulations. [reliance placed on D.S. 
Nakara’s case {(1983) 1 SCC 305 = AIR 1983 
SC 130} and Sindh High Court Bar 
Association’s case (PLD 2009 SC 879)].   
Learned counsel, while concluding his arguments stated that 
there are two enemies of mankind i.e. desire of wealth and 
Const.P.76/2007, etc. 
 
43 
desire of power and time is witness to it. According to him 
the NRO, 2007 is destructive to the entire nation.      
21. 
 
Mr. Shahid Orakzai, appearing in Civil Misc. 
Application No. 4842 of 2009 in Constitution Petition No. 76 
of 2007, argued that:- 
a) 
Any 
Ordinance 
promulgated 
by 
the 
President 
under 
Article 
89 
of 
the 
Constitution lapses on the day when the 
National Assembly is dissolved either by 
the President, Prime Minister or due to 
expiry of its constitutional term. [relied 
upon  Article 76(3) of the Constitution]. 
b) 
While 
issuing 
an 
Ordinance 
by 
the 
President, the advice of the Prime Minister 
or Cabinet is necessary in view of Article 48 
of the Constitution and in absence of such 
advice, it will be the act of an individual. 
c) 
The word ‘or’ used in Article 70 (1) means 
that a bill can be placed before the 
Parliament, regarding only one subject, 
either from the Federal Legislative List or 
from the Concurrent Legislative List and 
not regarding subjects from both the lists. 
As the NRO, 2007 contains the subjects of 
both the Legislative lists, therefore, it is 
violative 
of 
Article 
70 
(1) 
of 
the 
Constitution. 
Const.P.76/2007, etc. 
 
44 
d) 
Through the NRO, 2007 amendment has 
been made in the Cr.P.C. which has more 
application in the Provinces, as such the 
consent of Provincial Governments was 
necessary, while making such amendment. 
Therefore, the NRO, 2007 is violative of 
Article 142(c) of the Constitution. 
e) 
The word ‘any’ used in Article 70 of the 
Constitution, means ‘similar and more than 
one’, therefore, the Ordinance cannot make 
laws relating to more than one subject at a 
time.   
f) 
The word ‘any’ used in Article 184(3) of the 
Constitution refers to violation of one of the 
fundamental 
rights, 
therefore, 
the 
jurisdiction of this Court under the said 
provision would be attracted if only one 
fundamental right has been infringed and 
the same would not be available in a case 
which involved violation of more than one 
fundamental rights. Now this Court has to 
examine which one of the fundamental 
rights has been infringed by the NRO, 2007. 
 
22. 
 
Mr. Ashtar Ausaf Ali, ASC appearing for 
petitioner in Constitution Petition No.79 of 2007 adopted the 
arguments rendered Mr. Abdul Hafeez Pirzada, Sr. ASC. 
However, he placed on record some material in support of 
his petition. 
Const.P.76/2007, etc. 
 
45 
23. 
 
Mr. Shah Khawar, Acting Attorney General for 
Pakistan, reiterated the stance taken by the Federal 
Government in the written statement dated 7th December 
2009, to the effect that the NRO, 2007 was promulgated by 
the previous regime and he is under instructions not to 
defend it. He further stated that whatever decision will come, 
it will be honoured by the Government. On Court’s query 
about the consequences, if ultimately the NRO, 2007 is 
declared to be void ab initio, he replied that let allow these 
petitions and let the law take its own course.  
24. 
 
Mr. Kamal Azfar, learned Sr. ASC appeared  and 
reiterated the stand taken in the statement dated 15th 
December 2009, to the effect that the Federation does not 
oppose the petitions seeking a declaration that the NRO, 2007 
is illegal and unconstitutional.  
25. 
 
Learned Advocates Acting General of the 
Provinces adopted the arguments of the Attorney General for 
Pakistan. However, except Advocate General Sindh, all the 
other Advocates General filed statements, stating therein that 
neither any Review Board was constituted nor the benefit of 
the NRO, 2007 was extended to any under trial accused, 
except those who were accused under the NAO, 1999. 
Const.P.76/2007, etc. 
 
46 
26. 
 
Mr. M. Sardar Khan, Sr. ASC appeared as Amicus 
Curiae argued as follows :- 
a) 
The NRO, 2007 is not only inconsistent with 
fundamental rights enshrined in Article 25 
of the Constitution but also is in conflict 
with other provisions of the Constitution 
such as Article 175. Therefore, it is not a 
valid law rather it is a bad law.   
b) 
The NRO, 2007 is violative of Article 5 of 
the Constitution, which postulates that it is 
inviolable obligation of every citizen to 
obey the Constitution and the law.  
c) 
Promulgation 
of 
the 
NRO, 
2007 
is 
intentional violation of Article 8(2) of the 
Constitution, which provides that the State 
shall not make any law which takes away 
or 
abridges 
the 
fundamental 
rights 
conferred by the Constitution, if it does so, 
then it shall be void. 
d) 
The NRO, 2007 is violative of Article 2A of 
the Constitution which requires that the 
authority, which is conferred, is to be 
exercised 
in 
accordance 
with 
the 
Constitution 
and 
within 
the 
limits 
prescribed by the Almighty.  
e) 
The provisions of the NRO, 2007 i.e. 
Sections 2, 3, 4, 6 & 7, are void and invalid 
for being against the Injunctions of Islam, 
violative of the mandate of Article 175 of 
Const.P.76/2007, etc. 
 
47 
the Constitution, and repulsive to the 
provisions of Article 62 & 63 of the 
Constitution as it has given way to the 
ineligible persons to enter the Assemblies 
and to become public representatives.  
f) 
The object of this law for all intents and 
purposes 
does 
not 
seem 
to 
be 
‘reconciliation’ but to pave way and 
facilitate to those persons charged with 
corruption, plunders of national wealth and 
fraud, to come back, seize and occupy the 
echelons of power again. Its aim seems to 
legalize 
corruption 
and 
the 
crimes 
committed by those in power in the past.  
g) 
Courts have been deprived by virtue of this 
law of their judicial functions by conferring 
powers on administrative bodies.   
h) 
The NRO, 2007 is not only a discriminatory 
law 
but 
it 
has 
also 
been 
applied 
discriminately, therefore, liable to be struck 
down. [reliance placed on Sabir Shah v.  
Shad Muhammad Khan (PLD 1995 SC 66)].  
j) 
Section 3 of the NRO, 2007 although is very 
innocent, but it has no nexus with the 
reconciliation. It is merely a cosmetic 
provision 
just 
to 
give 
colour 
of 
respectability to the NRO, 2007 and has no 
nexus with its preamble. [referred to 
Const.P.76/2007, etc. 
 
48 
Section 40 of the Representation of the 
People Act, 1976.] 
27. 
 
Mian Allah Nawaz, Sr. ASC also appeared as 
Amicus Curiae. He, after elaborating the philosophy of 
morality, theory of law, theory of kleptocracy and the 
philosophy of the Constitution, contended as follows:- 
a) 
The NRO, 2007 is not a good law as it 
violates the intrinsic value of the law and 
intrinsic value of behaviors, therefore, liable 
to be struck down, otherwise it would 
create anarchy and greed in the society. 
b) 
Any law which flagrantly violates the 
theory of basic instincts and promotes the 
theory of satanic instincts should be struck 
down, otherwise the society will be 
swamped by the satanic instincts. 
c) 
The protection of the fundamental rights of 
the people is the soul of the Constitution. 
The NRO, 2007 is violative of the basic soul 
of the Constitution.  
d) 
The NRO, 2007 is classical manifestation of 
theory of kleptocracy, as it has been 
promulgated for the benefit of two persons, 
one who wanted to remain in power and 
the other who wanted to come to power. 
e) 
The NRO, 2007 is so bad and kleptocratic in 
nature that neither any provision of the 
Const.P.76/2007, etc. 
 
49 
Constitution validates it nor any law gives 
conscious to it. 
f) 
The actions taken and the benefits derived 
from the NRO, 2007 cannot be protected on 
the touchstone of Article 264 of the 
Constitution, as it is not applicable to the 
NRO, 2007 which is not just void but 
immoral. [reliance placed on Ram Prasad  
v. Union of India (AIR 1978 Raj. 131) and 
Bachan Singh  v. State of Punjab (AIR 1982 
SC 1325)]. 
While concluding his arguments he added that in case the 
NRO, 2007 is declared void ab initio then as a consequence 
whereof all the cases, which have been withdrawn under the 
NRO, 2007 will take rebirth.  
28. 
 
Mr. Shaiq Usmani, Sr. ASC appeared as Amicus 
Curiae and made his submissions as follows:- 
a) 
The NRO, 2007 cannot be justified on the 
ground that it was just an amnesty because 
even if it be considered so, it is not 
legitimate, as legitimate amnesty is one, 
which is accountable. 
b) 
The NRO, 2007 is violative of Article 8 of 
the Constitution, therefore, liable to be 
struck down.  
c) 
The NRO, 2007 being discriminatory, is 
violative of Article 25 of the Constitution, 
Const.P.76/2007, etc. 
 
50 
therefore, is liable to be struck down. 
[reliance placed on the case of I.A. 
Sherwani  v. Government of Pakistan 
(1991 SCMR 1041)]. 
d) 
The NRO, 2007 is void ab initio as it is 
violative of the salient features of the 
Constitution 
and 
the 
principle 
of 
trichotomy of powers. 
e) 
 The NRO, 2007 is violative of Article 89 of 
the Constitution.  
He concluded his arguments while adding that the then 
Attorney General apparently had no authority to correspond 
with the foreign authorities for withdrawal of proceedings, 
as such if something contrary to law is done, the person, who 
has done so, is liable to be proceeded against. 
29. 
Arguments addressed on behalf of the learned counsel 
appearing in support of petitions, inter alia, are that the 
NRO, 2007 be declared ultra vires the Constitution, void ab 
initio and non-est. During the course of arguments, they 
persuaded the Court to test the constitutionality of the NRO, 
2007 in view of provisions of the Constitution  
30. 
 
The learned Acting Attorney General for 
Pakistan, counsel for the Federation and the NAB as well as 
Advocates General of Punjab, Sindh, Balochistan & NWFP, 
Const.P.76/2007, etc. 
 
51 
did not oppose the petitions and consistently reiterated the 
stand that they were not supporting the NRO, 2007.  
31. 
 
It is a settled practice of the Courts that legal 
proceedings are not undertaken merely for academic 
purposes unless there are admitted or proven facts to resolve 
the controversy. As it has been pointed out hereinabove that 
till 12th October, 2007, when the petitions were filed, 
presumably, the benefit of the NRO, 2007 was not extended 
to any of the parties. Therefore, learned Prosecutor General, 
NAB and the Provincial Governments through their 
Advocates General were called upon to place on record 
accurate information of the accused persons, who had drawn 
benefit under Sections 2, 6 and 7 of the NRO, 2007. In 
response to Court’s order, learned Advocate General Sindh 
placed on record the list of the persons, whose criminal cases 
falling under Sections 302, 307, 324, 365, 381, 381-A PPC, 
Section 16 of Offences of Zina (Enforcement of Hadood) 
Ordinance, 1979 and Section 14, 17(3) and 20 of Offences 
Against Property (Enforcement of Had) Ordinance, 1979, etc. 
were withdrawn. According to him more than 3000 criminal 
cases were withdrawn under Section 494 Cr.P.C. providing 
the benefit of Section 2 of the NRO, 2007 to approximately 
8000 accused persons involved in above said heinous crimes. 
The statement of facts also showed the manner in which 
Const.P.76/2007, etc. 
 
52 
these cases were withdrawn. Similarly, the NAB through its 
Prosecutor General and Additional Prosecutor General also 
placed on record the list of beneficiaries (accused), who 
derived benefit under Sections 6 and 7 of the NRO, 2007. As 
per the list, 248 persons were extended benefit of the NRO, 
2007 and the cases or proceedings pending against them, 
within and outside the country, were withdrawn or 
terminated. The authenticity of such details furnished by the 
NAB was required to be verified from them but 
unfortunately accurate list or details of the cases registered 
within and outside the country under the NAO, 1999, despite 
repeated directions of the Court, were not furnished. 
However, the Chairman and others brought on record the 
material, on the basis of which, cases on the basis of requests 
for mutual assistance and civil party to proceedings on 
request of Federal Government were withdrawn on the 
request of the then Attorney General for Pakistan. It is 
pertinent to mention here that the material information 
regarding the fact that the Ministry of Law & Justice, on the 
request of one of the Advocates of a beneficiary, had not 
conceded for issuance of directions for withdrawal of such 
cases, was withheld by them. More so, the Secretary General 
and Military Secretary of the President as well as Secretary to 
President (public side) also appeared on Court’s call and 
Const.P.76/2007, etc. 
 
53 
when asked, placed on record their written statements, 
mentioning therein that no file, regarding permission to 
withdraw such cases and proceedings, was available in the 
office of the President. 
32. 
 
It is to be observed that except in the Province of 
Sindh, in all other Provinces, no accused or convict has been 
extended the benefit of Section 2 of the NRO, 2007, therefore, 
learned Advocates General were quite comfortable in making 
statements in this regard. However, in the list furnished by 
the NAB, there were names of persons belonging to various 
Provinces, who had been extended the benefit of Sections 6 & 
7 of the NRO, 2007.  
33. 
 
Before dilating upon the respective arguments of 
the petitioners’ counsel, we consider it appropriate to 
mention here that while hearing Sindh High Court Bar 
Association's case (PLD 2009 SC 879), which has been 
decided on 31st July, 2009, detailed reasons of which were 
released later, a fourteen member Bench of this Court, when 
confronted with the proposition i.e. ‘whether the Court, itself, 
can give decision that as the permanency attached to 
temporary 
legislation 
i.e. 
an 
Ordinance, 
through 
unconstitutional provision of Article 270AAA of the 
Constitution, should examine itself or the matter should be 
left for the Parliament to examine them’; there was no 
Const.P.76/2007, etc. 
 
54 
difficulty in declaring that Ordinance would stand repealed 
at the expiration of four months and three months, under 
Articles 89 and 128 of the Constitution, as the case may be. 
Prima facie, there was no justification for placing such 
legislations before the Parliament but on having taken into 
consideration the principle of trichotomy of powers, coupled 
with the fact that on the basis of bona fide apprehension, all 
the Ordinances, issued during the period, when the 
emergency was imposed in the country, commencing from 
3rd November, 2007 up to 15th December, 2007, and all those 
temporary legislations, which were in force on 15th December 
2007, were not placed before the Parliament, after attaining 
perpetuity through Article 270AAA of the Constitution, 
because 
such 
Ordinances 
had 
conferred 
rights 
and 
obligations upon the parties; therefore, it was considered 
appropriate to strengthen the Parliament, by sending these 
Ordinances for making them the Acts of the Parliament with 
retrospective effect, so the benefit derived by the masses, 
could also be protected. Relevant paras from the Sindh High 
Court Bar Association's case (PLD 2009 SC 879) have already 
been reproduced hereinabove. This is a fact that National 
Assembly, having 342 Members, who represent the nation, 
did not agree to make the NRO, 2007 as an Act of the 
Parliament, with retrospective effect, and ultimately it was 
Const.P.76/2007, etc. 
 
55 
withdrawn 
from 
the 
Assembly 
vide 
letter 
dated  
7th December, 2009. Contents of the said letter are reproduced 
hereinbelow for convenience:- 
“In continuation of this Secretariat’s D.O. letter of even 
number, dated the 7th December, 2009 on the above 
subject, it is to state that report of the Standing 
Committee on National Reconciliation Ordinance, 2007 
was 
finalized 
but 
before 
its 
approval 
by 
the 
Chairperson of the Committee, the Minister concerned 
had withdrawn the Bill under Rule 139 of the Rules of 
Procedure and Conduct of Business in the National 
Assembly, 2007 with the consent of the Honorable 
Speaker. 
2. 
The minutes of the meeting of the Committee and 
draft report are submitted herewith.”  
  
 
We must mention here that this Court cherishes 
the democratic system and the will of the electorate. It also 
wants the Federation to remain strong and stable.  
34. 
 
Admittedly, as it has been discussed hereinabove 
that, neither the Federation of Pakistan nor the Provincial 
Governments have defended the NRO, 2007 before this 
Court. It is also to be borne in mind that Constitution 
envisages the trichotomy of powers amongst three organs of 
the State, namely the legislature, executive and the judiciary. 
The legislature is assigned the task of law making, the 
executive to execute such law and the judiciary to interpret 
the laws. None of the organs of the State can encroach upon 
Const.P.76/2007, etc. 
 
56 
the field of the others. [State v. Ziaur Rahman (PLD 1973 SC 
49), Federation of Pakistan v. Saeed Ahmad Khan (PLD 
1974 SC 151), Government of Balochistan v. Azizullah 
Memon (PLD 1993 SC 341), Mahmood Khan Achakzai   v.  
Federation of Pakistan (PLD 1997 SC 426), Liaquat Hussain  
v.   Federation of Pakistan  (PLD 1999 SC 504), Syed Zafar 
Ali Shah  v. General Pervez Musharrf (PLD 2000 SC 869), 
Nazar Abbas Jaffri  v.  Secy: Government of the Punjab 
(2006 SCMR 606), Sindh High Court Bar Association's case 
(PLD 2009 SC 879), Smt. Indra Nehru Ghani    v. Raj Narain 
(AIR 1975 SC 2299) and Minerva  Mills Ltd.    v.   Union of 
India (AIR 1980 SC 1789)].  
35. 
 
Necessary inference can be drawn that the 
National Assembly and the Senate (the Parliament), which 
were required to approve or otherwise the NRO, 2007, and 
the same was sent along with other Ordinances to them, to 
make it an Act of the Parliament, with retrospective effect, 
did not consider it to be a valid temporary legislation, being 
an Ordinance promulgated under Article 89 of the 
Constitution on 5th October 2007.  
36. 
 
Another factual aspect, relevant for disposal of 
these petitions and examination of the constitutionality of the 
NRO, 2007 pertains to the date of its promulgation i.e. 5th 
Const.P.76/2007, etc. 
 
57 
October, 2007, which seems to be the result of a deal between 
the representatives of a political party  and the then President 
/Chief of Army Staff, General Pervez Musharraf, who was 
about to contest election for another term, in uniform, for the 
office of the President, as it is apparent from uncontroverted 
news, appeared in Daily Dawn dated 5th October, 2007 
(Friday), referred to by Mr. Abdul Hafeez Pirzada, Sr. ASC, 
which reads as under:- 
 
37. 
 
Mr. Abdul Hafeez Pirzada, Sr. ASC also referred 
to the book “Reconciliation: Islam, Democracy and the 
West” by late Mohtarma Benazir Bhutto, and read its 
Const.P.76/2007, etc. 
 
58 
different pages to substantiate the authenticity of the above 
news item. Similarly, Mr. A.K. Dogar, learned Sr. ASC also 
referred to the book “The Way of the World” by Ron 
Suskind and read its different pages to establish that the 
NRO, 2007 was nothing but the result of a deal between the 
two individuals.  
38. 
 
It is equally important to note that candidature of 
General Pervez Musharraf, to contest the election for the 
office of the President, in uniform, was challenged before this 
Court, by invoking jurisdiction under Article 184(3) of the 
Constitution, in the case of Jamat-e-Islami v. Federation of 
Pakistan (PLD 2009 SC 549), when a nine member Bench, 
disposed of the same as per majority view of 6 to 3, wherein, 
as per the majority view, petitions were held not 
maintainable within the contemplation of Article 184(3) of 
the Constitution, whereas, as per the minority view of three 
Hon’ble Judges of this Court namely Mr. Justice Rana 
Bhagwandas (as he then was), Mr. Justice Sardar Muhammad 
Raza Khan and Mr. Justice Mian Shakirullah Jan, all the 
petitions were held maintainable under Article 184(3) of the 
Constitution and were accepted. Against the acceptance of 
nomination papers of the General Pervez Musharraf by 
Election Commission of Pakistan, another Petition under 
Const.P.76/2007, etc. 
 
59 
Article 184(3) of the Constitution was filed by Justice (R) 
Wajih-ud-Din Ahmed, being Constitution Petition No.73 of 
2007. However, this petition was under consideration before 
eleven members Bench, when, on 3rd November, 2007, 
emergency was proclaimed in the country, which now has 
been declared unconstitutional, illegal, mala fide and void ab 
initio vide judgment dated 31st July 2009 in Sindh High 
Court Bar Association's case (PLD 2009 SC 879). 
39. 
 
There is another principle of law, which casts 
duty upon this Court to the effect that it should normally 
lean in favour of constitutionality of a statute and efforts 
should be made to save the same instead of destroying it. 
This principle of law has been discussed by this Court on a 
number of occasions. Reference in this behalf may be made to 
the cases of Abdul Aziz  v. Province of West Pakistan (PLD 
1958 SC 499), Province of East Pakistan v. Siraj-ul-Haq 
Patwari (PLD 1966 SC 854), Inam-ur-Rehman  v.  Federation 
of Pakistan (1992 SCMR 563), Sabir Shah   v.  Shad 
Muhammad Khan (PLD 1995 SC 66), Multiline Associates  
v.  Ardeshir Cowasjee (PLD 1995 SC 423), Tariq Nawaz   v.  
Government of Pakistan (2000 SCMR 1956), Asif Islam   v.  
Muhammad Asif (PLD 2001 SC 499) and Federation of 
Pakistan   v.  Muhammad Sadiq (PLD 2007 SC 133). This 
Const.P.76/2007, etc. 
 
60 
principle has been appropriately dealt with in the case of 
Elahi Cotton Mills Ltd.   v.  Federation of Pakistan (PLD 
1997 SC 582) in the following terms:- 
“that the law should be saved rather then be 
destroyed and the Court must lean in favour of 
upholding the constitutionality of legislation, 
keeping in view that the rules of constitutional 
interpretation is that there is a presumption in 
favour of the constitutionality of the legislative 
enactments unless ex facie it is violative of a 
constitutional provision.”  
 
40. 
 
M/s Salman Akram Raja, ASC, Abdul Hafeez 
Pirzada, Sr. ASC, A.K. Dogar, Sr. ASC and M. Sardar Khan, 
Sr. ASC (Amicus Curiae) explained the objects and the 
purposes of the ‘national reconciliation’ in the name of which 
the NRO, 2007 was promulgated. According to them, the 
NRO, 2007 would have been a valid legislation, had it 
promoted the national reconciliation in the country, but 
unfortunately it was the result of a deal between two persons 
for their personal objectives. Inasmuch, the persons 
representing the people of Pakistan, at that time, in the 
Parliament, were not made aware of it, as it was enacted on 
5th October, 2007, through an Ordinance, issued under Article 
89 of the Constitution, which is a temporary legislation, 
instead of enacting it through the Act of Parliament. They 
Const.P.76/2007, etc. 
 
61 
further stated that the NRO, 2007 is a power sharing deal 
between the then President and the head of a political party. 
This fact is evident from the contents of the two books; first is 
“Reconciliation: Islam, Democracy and the West” by late 
Mohtarma Benazir Bhutto and second is “The Way of the 
World” by Ron Suskind. Mr. M. Sardar Khan, learned 
Amicus Curiae has gone to the extent that the object of this 
law, for all intents and purposes, does not seem to be 
reconciliation but to pave the way and facilitate the persons, 
charged for corruption and corrupt practices, plundering of 
national wealth and commission of fraud, to come back, to 
seize and occupy the echelons of power again and to legalize 
corruption and crimes committed by those in power in past.  
41. 
 
Mr. Abdul Hafeez Pirzada, Sr. ASC relied upon 
the proceedings of the National Assembly available in the 
shape of collection under the heading “Constitution Making 
in Pakistan” and contended that the Constituent Assembly, 
at the time of framing the Constitution of Pakistan, 1973, had 
taken all possible measures, to ensure that, on the basis of 
participation of the chosen representatives from all over the 
country, the document i.e. the Constitution, should be 
promulgated with national reconciliation. He further 
contended that in South Africa through promulgation of 
Const.P.76/2007, etc. 
 
62 
“Promotion of National Unity and Reconciliation Act, 1995, a 
historic bridge was provided between the past of a deeply 
divided society, untold suffering and injustice, and a future 
founded on the recognition of human rights, democracy and 
peaceful co-existence for all South Africans, irrespective of 
color, race, etc. He further stated that although in the NRO, 
2007 the word ‘national reconciliation’ has been borrowed 
from the history but it has nothing to do with the national 
reconciliation. 
42. 
 
As it has been noted hereinabove that the NRO, 
2007 was promulgated, reportedly, as a result of deal, as is 
too evident from the contents of the newspaper ‘Daily Dawn’ 
dated 5th October, 2007, which has already been referred to 
hereinabove and the said report so published in this 
newspaper, has not, so far, been contradicted. It is well 
settled by the time that, in forming the opinion, generally, as 
to the prevailing state of affairs, having bearing on the issue 
involved in a case, reports of the relevant period, from 
electronic and print media, can be taken into consideration. 
In this behalf we are fortified with the judgments in Islamic 
Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), 
Raja Muhammad Afzal   v.  Ch. Muhammad Iltaf Hussain 
(1986 SCMR 1736), Benazir Bhutto v. Federation of Pakistan 
Const.P.76/2007, etc. 
 
63 
(PLD 1988 SC 416), Muhammad Nawaz Sharif v. Federation 
of Pakistan (PLD 1993 SC 473), Benazir Bhutto v. President 
of Pakistan (PLD 1998 SC 388), Benazir Bhutto v. President 
of Pakistan (PLD 2000 SC 77), Pakistan Lawyers Forum v. 
Federation of Pakistan (PLD 2004 Lahore 130, Muhammad 
Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), 
Watan Party v. Federation of Pakistan (PLD 2006 SC 697) 
and Sindh High Court Bar Association's case (PLD 2009 SC 
879).  
43. 
 
We are conscious that non-denial of a solitary 
newspaper report, or even more reports for that matter, may 
not, in appropriate cases, form the basis of an opinion, one 
way or the other, therefore, we rely upon the written word of 
the late Mohtarma Benazir Bhutto herself. That will have 
more authenticity.  
44. 
 
 Relevant extract from the book “Reconciliation: 
Islam, Democracy and the West” by late Mohtarma Benazir 
Bhutto, as relied upon by M/s Abdul Hafeez Pirzada and  
A.K. Dogar, Sr. ASC are also reproduced hereinbelow for 
ready reference:- 
“In August I called PPP leaders to New York. 
There we discussed giving General Musharraf a 
“nonpaper” of what we expected. Makhdoom Amin 
Fahim gave the “nonpaper” to General Musharraf on 
August 18. The “nonpaper” said that unless there 
Const.P.76/2007, etc. 
 
64 
was movement, by the end of August both sides 
would be free to go their own ways. General 
Musharraf and I had a long conversation over the 
phone that night. He said he would send a team to 
see me at the end of August.  
 
The August team met me in London at my flat 
in Queens Gate. They discussed a whole new 
constitutional package. We increased the political 
price for the new package. They said they would 
come back in two days. They didn’t. As the deadline 
approached for calling off talks, I got a call that the 
deadline would be extended. It was, but there was 
silence from the Musharraf camp. 
 
The PPP and I met in London in September, 
and I announced that the date of my return to 
Pakistan would be given on September 14, 2007 from 
all the capitals and regions of Pakistan. I wanted the 
date announced from my homeland. The talks with 
Musharraf remained erratic. He didn’t want us 
resigning from the assemblies when he sought 
reelection. There wouldn’t be much difference in his 
winning whether we boycotted or contested, but we 
used this to press him to retire as army chief. He cited 
judicial difficulties. It was a harrowing period. After 
many, many late-night calls, he passed a National 
Reconciliation Order, rather than lift the ban on a 
twice-elected prime minister seeking office a third 
time, which he said he would do later. In exchange 
for the NRO, we reciprocated by not resigning from 
the assemblies, although we did not vote for him. We 
knew the matter still had to be decided by the 
Supreme Court. We thought Musharraf took the 
wrong decision to seek reelection from the existing 
Const.P.76/2007, etc. 
 
65 
Parliament, that it would only compound the crisis. 
But he had made his choice.” 
  
45. 
 
It appears from the above extract of the book, 
itself, of late Mohtarma Benazir Bhutto that the NRO, 2007 
was designed to benefit a certain class of individuals against 
whom cases were registered between 1st January, 1986 to  
12th October, 1999 subject to the scheme laid down therein. 
Thus we, prima facie, hold that the NRO, 2007 was not 
promulgated 
for 
achieving 
the 
object 
of 
national 
reconciliation as according to its substantive provision i.e. 
Section 2, it was meant to extend benefit to the accused 
persons, against whom cases were registered between 1st 
January, 1986 to 12th October, 1999, subject to the scheme laid 
down therein. Likewise, under Section 7 of the NRO, 2007, 
the cases against ‘holders of public office’, involved in the 
offences, inside and outside the country, deemed to have 
been withdrawn, including the proceedings, initiated under 
Section 33 of the NAO, 1999 outside the country, through 
request for mutual assistance and civil party to proceedings, 
by the Federal Government, before the 12th October, 1999. 
These two provisions, abundantly, make it clear that the 
NRO, 2007 has extended benefit only to the criminals, 
involved in the minor or heinous crimes and ‘holders of 
public office’ involved in corruption and corrupt practices, as 
Const.P.76/2007, etc. 
 
66 
such it cannot be considered to be a legislation for achieving 
the object of national reconciliation. 
46. 
 
We have yet to see a law pari materia with the 
NRO, 2007  according to which an accused, who being 
‘holder of public office’, indulged into corruption and 
corrupt practices, plundering and looting of national wealth, 
etc., has been extended the benefit of withdrawal of his cases 
from the Court of competent jurisdiction. In order to 
understand the word ‘reconciliation’ reference may be made 
to ‘Black’s Law Dictionary’ wherein it has been defined as 
‘restoration of harmony between persons or things that had been in 
conflict’. Likewise in ‘Corpus Juris Secundum’ the word 
‘reconciliation’ has been defined as ‘the renewal of amicable 
relations between two persons who had been at enmity or variance 
usually implying forgiveness of injuries on one or both sides; it is 
treated, with respect to divorce’. The word ‘reconciliation’ has 
been defined in ‘Advanced Law Lexicon’ 2005 Ed. as ‘the 
restoration to friendship and harmony; renewal of amicable 
relations between two person having been in conflict; literally the 
restoration of friendly relations after an estrangement’. As it has 
been argued by Mr. Abdul Hafeez Pirzada, Sr. ASC that 
when the word ‘national’ is prefixed with the word 
‘reconciliation’, its meaning changes absolutely from its 
Const.P.76/2007, etc. 
 
67 
ordinary dictionary meanings, and ‘national reconciliation’ 
means ‘the reconciliation of the entire nation’. Therefore, 
keeping in view the fact, noted hereinabove, that the NRO, 
2007 was the result of deal between two individuals for their 
personal objectives, coupled with its dictionary meaning, it 
cannot be called ‘national reconciliation’. 
47. 
 
Mian Allah Nawaz, learned Sr. ASC has also 
placed on record the thesis by Barrister Saifullah Ghouri on 
‘The Acquiescence of UK Courts to Foreign Legislation in 
Particular the NRO’, in which, he while discussing the NRO, 
2007, has made the reference to ‘National Commission for 
Forced Disappearance’ in Argentina; ‘Indian Residential 
Schools Trust and Reconciliation Commission’ in Canada; 
‘National Truth & Reconciliation Commission’ and 
‘National Commission on Political Imprisonment & 
Torture’ in Chile; ‘United Nations Truth Commission’ in El. 
Salvador; ‘Reconciliation & Unity Commission’ in Fiji; 
‘Truth & Reconciliation Commission’ in South Africa; 
‘Truth & Reconciliation Commission’ in South Korea; 
‘Greensboro Truth & Reconciliation Commission’ and 
‘Joshua Micah Marshall’ in USA; etc. Interestingly, none of 
these commissions have dealt with the financial and ordinary 
crimes but amazingly the NRO, 2007 is the only law, wherein 
Const.P.76/2007, etc. 
 
68 
cases pertaining to ordinary and financial crimes, committed 
by the accused and ‘holders of public office’, who indulged 
themselves into corruption and corrupt practices, have been 
declared to be withdrawn or terminated.  
48. 
 
For the foregoing reasons, we are of the opinion 
that the NRO, 2007 was not promulgated for ‘national 
reconciliation’ but for achieving the objectives, which 
absolutely have no nexus with the ‘national reconciliation’ 
because the nation of Pakistan, as a whole, has not derived 
any benefit from the same. Contrary to it, it has been 
promulgated for achieving the individuals’ reconciliation, 
explained before this Court with the help of admitted 
evidence, noted hereinabove.      
49. 
 
Learned counsel appearing for the petitioners 
stated that the NRO, 2007 has violated the provisions of 
Articles 4, 8, 25, 62(f), 63(1)(p), 89, 175 and 227 of the 
Constitution, therefore, it may be declared void ab initio with 
all consequences, likely to flow after declaring it so.  
50.  
 
There is no cavil with the proposition that Article 
8 of the Constitution provides that any law, or any custom or 
usage having the force of law, in so far as it is inconsistent 
with the rights conferred by this Chapter, shall, to the extent 
of such inconsistency, be void; and the State shall not make 
Const.P.76/2007, etc. 
 
69 
any law which takes away or abridges the rights so conferred 
and any law made in contravention of this clause shall, to the 
extent of such contravention, be void. Needless to observe 
that Article 8 of the Constitution is covered under Chapter I 
of the Constitution, which deals with fundamental rights. 
Article 25 of the Constitution, being one of the important 
Articles of the Constitution, professes that all citizens are 
equal before law and are entitled to equal protection of law.  
51. 
 
At this stage, reference to Article 4 of the 
Constitution is also necessary, which deals in respect of the 
rights of individuals to be dealt with in accordance with law. 
This Article of the Constitution is not placed in the Chapter 
of fundamental rights, perhaps on account of its implications, 
as is evident from the language employed therein; namely, to 
enjoy the protection of law and to be treated in accordance 
with law is the inalienable right of every citizen, wherever he 
may be and of every other person for the time being within 
Pakistan. So, a uniform protection of law, being an 
inalienable right of every citizen and the person, who is, for 
the time being within Pakistan, has been provided under this 
Article. Nexus of Article 4 of the Constitution can 
conveniently be made with Article 25 of the Constitution or 
Const.P.76/2007, etc. 
 
70 
any other Article, relating to fundamental rights, including 
Article 9 of the Constitution. 
52. 
 
It is important to note that on proclamation of 
emergency, fundamental rights, guaranteed under Articles 
15, 16, 17, 18, 19 & 24, of the Constitution, can be suspended 
in terms of Article 233 of the Constitution, but during the 
emergency, the provisions of Article 4 of the Constitution 
remain operative. The phrase ‘rule of law’ has been used 
since the time of Aristotle, in the fourth century B.C.; it has 
meant different things to different authors and theorists; 
Aristotle’s concept of rule of law is contained in his simple 
saying: “the rule of law is to be preferred to that of any 
individual” – In other words, the rule of law is anathema to 
the rule of men; in the words of the Constitution of the State 
of Massachusetts, it means “a government of law and not of 
men”; in brief, it means supremacy of law. [Comparative 
Constitutional Law by Hamid Khan & Muhammad Waqar 
Rana (page 48)]. The prominent Jurist A.V. Dicey in his work 
“Law of the Constitution” said that ‘rule of law’ was one of 
the main features of the Constitution of United Kingdom. He 
highlighted the following three distinct concepts:- 
i) 
No man is punishable or can be lawfully 
made to suffer in body or goods except for 
Const.P.76/2007, etc. 
 
71 
a distinct breach of law established in the 
ordinary legal manner before the ordinary 
courts of the land. In this sense the rule of 
law is contrasted with every system of 
government based on the exercise by 
persons in authority of wide, arbitrary, or 
discretionary powers of restraint.  
ii) 
When we speak of the “rule of law” as a 
characteristic of our country, not only that 
with us no man is above the law, but 
(which is a different thing) that here every 
man, whatever be his rank or condition, is 
subject to the ordinary law of the realm and 
amenable to the jurisdiction of the ordinary 
tribunals.  
iii) 
The general principles of the constitution 
(as for example the right to personal liberty, 
or the right to public meeting) are with us 
as 
the 
result 
of 
judicial 
decisions 
determining the rights of private persons in 
particular cases brought before the courts; 
whereas under many foreign constitutions 
the security (such as it is) given to the rights 
of individuals results, or appears to result, 
from 
the 
general 
principles 
of 
the 
constitution. ……”   
Elaborating upon the second concept Dicey commented: 
“with us every official, from the Prime Minister down to 
constable or a collector of taxes, is under the same 
Const.P.76/2007, etc. 
 
72 
responsibility for every act done without legal justification as 
any other citizen.” He further wrote on the second concept 
that “the rule of law” in this sense excludes the idea of any 
exemption of officials or other from the duty of obedience to 
the law which governs other citizens or from the jurisdiction 
of the ordinary tribunals……..; the notion which lies at the 
bottom of the administrative law known to foreign countries 
is, that affairs or disputes in which the government or its 
servants are concerned are beyond the sphere of the civil 
courts and must be dealt with by special and more or less 
official bodies.”  
53. 
 
The above concepts of ‘rule of law’ highlighted 
by A.V. Dicey, have been noted with approval by the 
eminent Jurists of our country. Reference may be made to the 
book “Access to Justice in Pakistan” by Justice Fazal Karim. 
The above concepts have been discussed more elaborately by 
him in his another book “Judicial Review of Public 
Actions”. Looking in depth to the concept of “rule of law” 
one can conveniently follow that:- 
i) 
The rule of law excludes arbitrariness; its 
postulate is ‘intelligence without passion’ and 
‘reason freed from desire’; 
Const.P.76/2007, etc. 
 
73 
ii) 
Wherever 
we 
find 
arbitrariness 
or 
unreasonableness there is denial of the rule of 
law; 
iii) 
What is a necessary element of the rule of law 
is that the law must not be arbitrary or 
irrational and it must satisfy the test of reason 
and the democratic form of policy seeks to 
ensure this element by making the framers of 
the law accountable to the people.   
[Bachan Singh   v.  State of Punjab (AIR 1982 
SC 1325)].  
 
Therefore, now we have to consider as to whether a law, 
which is inconsistent with the fundamental rights, is liable to 
be declared void to the extent of such inconsistency. Article 
13 of the Indian Constitution is pari materia to Article 8 of the 
Constitution of Pakistan and according to the former, “all 
laws in force in the territory of India immediately before the 
commencement of this Constitution, in so far as they are 
inconsistent with the provisions of this Part, shall, to the 
extent of such inconsistency, be void”. This Article is covered 
by Part-III of the Indian Constitution, which deals with the 
fundamental rights. More so, Article 14 of the Indian 
Constitution deals with one of the fundamental rights i.e. 
‘equality before the law’, whereas in our Constitution, Article 
25 deals with the said subject.  
Const.P.76/2007, etc. 
 
74 
54. 
 
As far as jurisdiction of this Court to examine the 
constitutionality of a law is concerned, there is no dispute 
either. Sub-Article (1) of Article 8 of the Constitution uses the 
word ‘inconsistent’ purposely, regarding any law which was 
promulgated in the past or is in existence presently. Whereas, 
sub-Article 2 of Article 8 of the Constitution debars the State 
not to make any law which takes away or abridges the rights 
so conferred and any law made in contravention of this 
clause shall, to the extent of such contravention, be void. 
Same is the position in the Indian Constitution, as it has been 
noted hereinabove. So, inconsistency or contravention of a 
law passed, or the existing law, shall be examined to the 
extent of violation of fundamental rights and such laws are 
not void for other purposes. 
55. 
 
As far as the term ‘void’ is concerned, it has been 
defined in Black’s Law Dictionary, 7th Edn. (1999), as “of no 
legal effect; null.” Corpus Juris Scecundum, Vol.92 at pp 1021 
to 1022 defines ‘void” as follows:- 
“The word ‘void’ may be used in what is variously 
referred to as its literal, absolute, primary, precise, strict, 
and strictly accurate sense, and in this sense it means 
absolutely null; null and incapable of confirmation or 
ratification; of no effect and incapable of confirmation; 
of no force and effect; having no legal force or binding 
effect, having no legal or binding force; incapable of 
Const.P.76/2007, etc. 
 
75 
being enforced by law; of no legal force or effect 
whatever; that which has no force and effect; without 
legal efficacy, without vitality or legal effect; ineffectual; 
nugatory; unable in law to support the purpose for 
which it was intended”. (emphasis added). 
 
56. 
 
The expression ‘void’ has also been commented 
upon in Province of East Pakistan   v. M.D. Mehdi Ali Khan 
(PLD 1959 SC 387), Syed Abul A’la Maudoodi   v.  
Government of West Pakistan (PLD 1964 SC 673), Bhikaji 
Narain   v. State of M.P. (AIR 1955 SC 781). This Court in 
Haji Rehmdil  v.  Province of Balochistan (1999 SCMR 1060) 
defines that “term "void" signifies something absolutely null, 
incapable of ratification or confirmation and, thus, having no 
legal effect whatsoever”.  Similarly, the word ‘void ab initio’ 
has been defined in Black’s Law Dictionary, 7th Edn. (1999) 
as “null from the beginning”.   
57. 
 
However, the powers of this Court to examine 
the constitutionality of a law have been discussed in number 
of judgments at number of times. Reference in this behalf 
may be made to Fauji Foundation  v.  Shamimur Rehman 
(PLD 1983 SC 457 at 596), Benazir Bhutto’s case (PLD 1988 
SC 416 at 485), Azizullah Memon’s case (PLD 1993 SC 341 at 
354), Government of NWFP  v.  Muhammad Irshad (PLD 
1995 SC 281 at 296), Civil Aviation Authority  v.  Union of 
Const.P.76/2007, etc. 
 
76 
Civil Aviation Employees (PLD 1997 SC 781 at 796), Wukala 
Mahaz Barai Tahafaz Dastoor    v.   Federation of Pakistan 
(PLD 1998 SC 1263 at 1313 & 1357), Wattan Party  v.  
Federation of Pakistan (PLD 2006 SC 697 at 731) and 
Pakistan Muslim League (N)   v.  Federation of Pakistan  
(PLD 2007 SC 642 at 671, 675, 676).  
58. 
 
It is important to note that as per the command of 
Article 4 of the Constitution all the citizens without any 
discrimination shall be dealt with in accordance with law, so 
enforcement of the law leaves no room for creating any 
distinction between the citizens, except a particular class, on 
the basis of intelligible differentia. The principle challenge to 
the NRO, 2007, is of its being discriminatory in nature. It is 
the case of the petitioners’ that the NRO, 2007, being violative 
of Article 25 of the Constitution, deserves to be declared void 
ab initio, non est, thus never took birth, therefore, nothing, 
which is the product of the NRO, 2007 or done in pursuance 
of it or under it, ever came into existence or survive. It is also 
contended that the NRO, 2007 is void because it is a fraud on 
the Constitution. According to the learned counsel for the 
petitioners, the NRO, 2007 has violated the dictum laid down 
by this Court in Mahmood Khan Achakzai’s case (PLD 1997 
SC 426) improved upon in Syed Zafar Ali Shah’s case (PLD 
Const.P.76/2007, etc. 
 
77 
2000 SC 869), wherein, after a great deal of efforts, the Court 
eventually came to treat Article 4 of the Constitution as ‘due 
process clause’. So far as the provision of Article 25 of the 
Constitution is concerned, it has been discussed time and 
again by this Court in a good number of cases, reference to 
which may not be necessary, except the one i.e. Azizullah 
Memon’s case (PLD 1993 SC 341), wherein inconsistency of 
the provisions of Criminal Law (Special Provisions) 
Ordinance, 1968 were examined on the touchstone of Articles 
8 and 25 of the Constitution, and ultimately appellant’s 
(Government 
of 
Balochistan) 
appeal 
was 
dismissed, 
declaring the Criminal Law (Special Provisions) Ordinance, 
1968, to be void being inconsistent with the fundamental 
rights enshrined in Article 25 of the Constitution. In this 
judgment, 
with 
regard 
to 
‘reasonable 
classification’, 
following two principles have been highlighted:- 
“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.”  
 
Const.P.76/2007, etc. 
 
78 
As 
far 
as 
‘intelligible 
differentia’ 
is 
concerned, 
it 
distinguishes persons or things from the other persons or 
things, who have been left out. The Indian Supreme Court, 
while relying upon the statement of Professor Willis in 
Charanjit Lal  v.  Union of India (AIR 1951 SC 41), observed 
that “any classification which is arbitrary and which is made 
without any basis is no classification and a proper classification 
must always rest upon some difference and must bear a reasonable 
and just relation to the things in respect of which it is proposed”. 
Same principle has been highlighted in Shazia Batool v. 
Government of Balochistan (2007 SCMR 410).  
59. 
 
Thus, keeping in view the above principles and 
the definition of classification “intelligible differentia” means, 
in the case of the law differentiating between two sets of the 
people or objects, all such differentiations should be easily 
understood as logical and lucid and it should not be artificial 
or contrived.  
60. 
 
It may be noted that the NRO, 2007 has extended 
benefit to three categories of persons in the following 
manner:- 
1) 
By virtue of amendment of Section 494 Cr.P.C. 
the cases of accused persons, including the 
absconding accused, involved in criminal 
cases, for political reasons or through political 
Const.P.76/2007, etc. 
 
79 
victimization, initiated between 1st January, 
1986 to 12th October, 1999 including those 
against 
whom, 
judgments 
have 
been 
pronounced by the Trial Court, were to be 
withdrawn. 
2) 
By adding clause (aa) in Section 31A of the 
NAO, 1999, it is declared that an order and 
judgment passed by the Court in absentia 
against an accused is void ab initio and shall 
not be acted upon. 
3) 
By inserting Section 33F in the NAO, 1999, the 
proceedings under investigation or cases 
pending in any Court including a High Court 
and the Supreme Court of Pakistan, initiated 
by or on a reference by the NAB, inside and 
outside Pakistan, including the proceedings 
initiated under Section 33 (ibid) by making 
requests for mutual assistance and civil party 
to proceedings, by the Federal Government, 
before the 12th day of October, 1999, against 
‘holders of public office’ stood withdrawn 
and terminated and such ‘holders of public 
office’  shall also not be liable for any action in 
future as well under this Ordinance for acts 
having been done in good faith before the said 
date.  
61. 
 
Now the constitutionality of amended Section 494 
Cr. P.C. (Act V of 1898) by means of Section 2 of the NRO, 
Const.P.76/2007, etc. 
 
80 
2007 shall be examined. It would be appropriate to reproduce 
Section 494 Cr.P.C in its original form hereinbelow:- 
“494. Effect of withdrawal from prosecution. 
Any Public Prosecutor may, with the consent of 
the Court, before the judgment is pronounced, 
withdraw from the prosecution of any person 
either generally or in respect of any one or more 
of the offences for which he is tried, and upon 
such withdrawal: 
(a) 
if it is made before a charge has been 
framed, the accused shall be discharged in 
respect of such offence or offences;  
(b) 
if it is made after a charge has been framed, 
or when under this Code no charge is 
required, he shall be acquitted in respect of 
such offence or offences.   
 
In above provision, emphasis is upon “effect of withdrawal 
from the prosecution with the consent of the Court”. A plain 
reading of above provision categorically provides for an 
important role of the Court as without its consent, no effect 
of withdrawal from prosecution shall take place. In Saad 
Shibli  v. State  (PLD 1981 SC 617), it has been observed as 
follows:- 
“It follows therefore, that on disclosure of 
satisfactory objective grounds, relatable to public 
policy, or public peace, and administration of 
justice, an application under Section 494 Cr.P.C., 
for seeking Court’s permission to withdraw from 
the prosecution can be filed. The Court’s duty is 
Const.P.76/2007, etc. 
 
81 
to ensure that such a course “is not an attempt to 
interfere with the normal course of justice for 
illegitimate reason or purposes”– AIR 1957 SC 389 
or that Courts “own functioning is not thereby 
pre-empted”– PLD 1977 SC 451.” 
To extend the benefit of the NRO, 2007 following amendment 
was made in Section 494 Cr.P.C. which is reproduced 
hereinbelow:- 
 
“2. Amendment of section 494, Act V of 1898. 
In the Code of Criminal Procedure, 1898 (Act V of 
1898), section 494 shall be renumbered as sub-section 
(1) thereof and after sub-section (1) renumbered as 
aforesaid, the following sub-section (2) and (3) shall 
be added, namely: 
“(2) Notwithstanding anything to the contrary 
in sub-section(1), the federal government or a 
provincial 
government 
may, 
before 
the 
judgment is pronounced by a Trial Court, 
withdraw from the prosecution of any person 
including an absconding accused who is found 
to be falsely involved for political reasons or 
through political victimization in any case 
initiated between 1st day of January, 1986 to 
12th day of October, 1999 and upon such 
withdrawal clause (a) and clause (b) of sub-
section (1) shall apply. 
(3) For the purposes of exercise of powers 
under sub-section (2) the federal government 
and the provincial government may each 
constitute a review board to review the entire 
record 
of 
the 
case 
and 
furnish 
recommendations as to their withdrawal or 
otherwise. 
(4) The review board in case of Federal 
Government shall be headed by a retired judge 
of the Supreme Court with Attorney-General 
and Federal Law Secretary as its members and 
in case of Provincial Government it shall be 
headed by a retired judge of the high court with 
Const.P.76/2007, etc. 
 
82 
Advocate-General and/or Prosecutor-General 
and Provincial Law Secretary as its members. 
(5) A review board undertaking review of a 
case may direct the public prosecutor or any 
other concerned authority to furnish to it the 
record of the case.” 
 
A cursory glance on amended Section 494 Cr.P.C. leads to 
conclude that powers of the Court under Section 494 (1) 
Cr.P.C were conferred upon the Review Board, to be 
constituted by the Federal Government and the Provincial 
Government, composition of which has been provided under 
sub-Section (4) of Section 494 Cr.P.C. In simple words 
consent of the Court has been replaced with the 
recommendations of the Review Board i.e. an executive 
body, for all intent and purposes. The Review Board on 
whose recommendations, all the cases, in which judgment 
has not been pronounced by the Trial Court, are to be 
withdrawn from the prosecution, including the cases of 
absconding accused, who were found to be falsely involved 
for the political reasons or political victimization. Essentially, 
declaring a person absconder is the job of the Trial Court, 
after submission of challan and observing codal formalities 
under Sections 87 and 88 Cr.P.C. As far as involving a person 
falsely for political reasons or through political victimization, 
is concerned, it is a question which could only be examined 
by the Court of law, before whom challan has been submitted 
Const.P.76/2007, etc. 
 
83 
because once a challan is filed, the accused can be discharged 
or acquitted under Cr.P.C., if there is no evidence against the 
accused, as the case may be, or by applying for quashment of 
the case under Section 561-A  Cr.P.C. or approaching the 
Revisional Court for terminating the proceedings, if the same 
are not founded on correct disclosure of information for 
involvement of the accused. However, as far as absconding 
accused is concerned, prima facie, he is considered to be 
fugitive from law. Therefore, without surrendering to the 
Court, legally no concession can be extended to him by the 
executive authority. Surprisingly, action initiated under the 
NRO, 2007 in terms of above provision is tantamount, in 
clear terms, to deny the independence of judiciary, which is 
hallmark and also one of the salient features of the 
Constitution, as it has been held in Syed Zafar Ali Shah’s 
case (PLD 2000 SC 869). Relevant paras therefrom are 
reproduced hereinbelow for convenience:-  
“We are of the considered view that if the Parliament 
cannot alter the basic features of the Constitution, as 
held by this Court in Achakzai's case (supra), power 
to amend the Constitution cannot be conferred on the 
Chief Executive of the measure larger than that which 
could be exercised by the Parliament. Clearly, 
unbridled powers to amend the Constitution cannot 
be given to the Chief Executive even during the 
transitional period even on the touchstone of `State 
Const.P.76/2007, etc. 
 
84 
necessity'. We have stated in unambiguous terms in 
the Short Order that the Constitution of Pakistan is 
the supreme law of the land and its basic features i.e 
independence 
of 
Judiciary, 
federalism 
and 
parliamentary form of government blended with 
Islamic Provision cannot be altered even by the 
Parliament. Resultantly, the power of the Chief 
Executive to amend the Constitution is strictly 
circumscribed by the limitations laid down in the 
Short Order vide sub-paragraphs (i) to (vii) of 
paragraph 6.” 
 
It may be noted that as far as independence of Judiciary is 
concerned its security has been provided by the Constitution 
itself in Article 2A of the Constitution but the principle and 
concept of the same shall be discussed after examining the 
constitutionality of various provisions of the NRO, 2007 
including the one which is under discussion.  
62.  
 
In order to decide the issue of withdrawal of 
criminal cases, registered against the accused persons, during 
the specific period, commencing from 1st January, 1986 to 12th 
October, 1999, Mr. Yousaf Leghari, Advocate General Sindh 
was called upon to place on record the details of all cases. 
However, except furnishing one list of the cases, he could not 
handover the list of all other cases, which according to his 
statement, noted by this Court vide order dated 14th 
December 2009, is to the effect that the Department has not 
Const.P.76/2007, etc. 
 
85 
been able to get a detailed list/ names of absconders, whose 
cases were recommended by the Review Board and 
thereafter withdrawn under amended Section 494 Cr.P.C. In 
respect of other Provinces, neither any benefit of the NRO, 
2007 was extended to any of the accused, nor was any 
Provincial Review Board constituted, as submitted by the 
Advocates General of the respective Provinces. However, a 
perusal of the material so furnished by the Advocate General 
Sindh, reveals that Provincial Review Board constituted 
under the above provision of amended Section 494 Cr.P.C., 
examined criminal cases on 9th October 2007 and has drawn 
the conclusion on the same day that after having gone 
through the available record and bearing in mind the 
provisions contained in the amended Section 494 Cr.P.C. the 
Board is of unanimous view that all the cases were falsely 
registered and for political reasons, therefore, it would be 
futile exercise to keep them pending particularly when most 
of the cases are very old and there is hardly any cogent 
evidence to connect the accused with the alleged offences, as 
none of them would result in conviction, if tried by the 
respective Courts, as such, notwithstanding the fact that any 
one of the accused has been declared absconder, the Board 
recommended the Provincial Government that those cases 
may be withdrawn forthwith. Exact figure of such cases has 
Const.P.76/2007, etc. 
 
86 
not been brought on record but as per verbal statement of the 
learned Advocate General Sindh, there were more than three 
thousand cases which have been withdrawn, in which about 
eight thousand accused were involved. We fail to understand 
whether hundreds of cases can be decided within few hours, 
for the purpose of making recommendations by the 
Provincial Review Board. Therefore, inference would be that 
just to fulfill the formality, meeting of the Board was 
convened in order to get recommendations for the 
withdrawal of cases. The list so made available by the 
learned Advocate General Sindh indicates that the cases 
including the criminal cases, involving murder, attempt to 
murder, 
dacoity, 
kidnapping 
for 
ransom, 
robbery, 
gunrunning, theft, extortion, etc. have been recommended by 
the Board for withdrawal forthwith. Needless to observe that 
after the amendment in PPC, in pursuance of judgment of 
this Court in Federation of Pakistan v. Gul Hassan Khan 
(PLD 1989 SC 633), the cases pertaining to Qisas, Diyat, Arsh, 
etc. were not allowed to be compounded without the 
permission of the victim or the heirs of deceased and even if 
such permission is sought by entering into compromise, 
under Chapter XVI of the PPC, no withdrawal or 
compromise 
of 
such 
cases 
is 
permissible 
in 
non-
compoundable cases. Interestingly, in the list, submitted by 
Const.P.76/2007, etc. 
 
87 
the learned Advocate General Sindh, there are cases, relating 
to offences, which are non-compoundable and even the 
Court of law, before whom matter is subjudice, is not 
empowered to make recommendations for withdrawal of the 
same or allowed to enter into compromise. Admittedly,  the 
victim or heirs of the deceased, in body-hurt cases, covered 
by Chapter XVI PPC,  had an inalienable right to be heard by 
a Court of law, as sometimes permission is accorded by the 
Court to compound the offence, subject to payment of Diyat, 
Daman, Arsh, etc., as the case may be. But by substituting the 
Court with the Review Board, mandatory procedure of law 
has been compromised. At this juncture, reference to the 
following para from the Hakim Khan v. Govt. of Pakistan 
(PLD 1992 SC 595) would not be out of context:- 
19. As regards the merits of the question involved in the 
case, the punishments of death awarded were not by 
way of Qisas. The sentences of death awarded were 
under Ta'zir. Just as a sentence of Ta'zir is imposed on 
State's command and not as a right of the individual 
under God's law, the State as represented by the 
President, has and continues to have in respect of Ta'zir 
punishments, the right of commutation, remission etc. 
As per the above principle of law, no question of pardon 
arises if the punishment of Qisas has been awarded. 
However, in respect of Ta’zir, the President continues to 
Const.P.76/2007, etc. 
 
88 
enjoy the power to grant pardon. It is further observed that in 
terms of Articles 45 and 2A of the Constitution, the Court has 
no power to apply the test of repugnancy by invoking Article 
2A of the Constitution for striking down Article 45 of the 
Constitution. This principle has been highlighted by the 
seven member bench of this Court in the case of  Abdul 
Malik   v.   The State  (PLD 2006 SC 365). Relevant para 
therefrom is reproduced hereinbelow for convenience:- 
23. It was argued that the power enshrined in the afore-
referred Article is violative of the spirit of Article 2A of 
the Constitution. Any theological debate in this context 
is unnecessary as Article 2A is not a self-executing 
provision and unless there is proper legislation or 
amendment in the Constitution, the provision as it 
stands has to be given effect to. The power of the 
President to grant pardon, reprieve or respite and to 
remit or suspend  commute any sentence is a power 
which is given to Heads of the States in most of the 
Constitutions of the world. The import and ambit of this 
provision were considered by this Court in Bhai Khan v. 
State PLD 1992 SC 14 wherein at page 25, it was held as 
under: - 
"The exercise of the discretion by the President 
under Article 45 is to meet at the highest level the 
requirements of justice and clemency, to afford 
relief against undue harshness, or serious mistake 
or miscarriage in the judicial process, apart from 
specific or special cases where relief is by way of 
grace alone, as for instance to celebrate an event 
or when a new President or Prime Minister is 
installed, where relief or clemency is for the 
honour of the State. In the former case, the 
discretion has to be exercised with care, keeping 
Const.P.76/2007, etc. 
 
89 
in mind the duty to maintain justice, so as to 
prevent the erosion of the deterrent effect that 
judicial punishment must retain. The scope of the 
power of the President under Article 45 is 
basically discretionary, in view of Article 48(2) of 
the Constitution. The power under Article 45 
being at the apex and unfettered, the President, 
whilst commuting a sentence (on a number of 
counts) or different sentences, can order the 
commuted sentences to run concurrently inter se 
and/or concurrently with any other or others 
imposed by the Court." 
 
63. 
 
No assertion could be made by either of the 
parties about the punishment to an accused, whose case has 
been withdrawn despite likelihood of his getting punishment 
under Qisas or Ta’zir. The Court, trying an accused for a 
particular crime, based on a particular charge, prayed against 
him by the prosecution, has no reasons to enter into 
discussion whether on account of political victimization, he 
has been involved in the case or otherwise; because the Court 
is required to decide the case on merits, in exercise of its 
jurisdiction, 
following 
the 
consistent 
principles 
of 
administration of justice in criminal cases that if no case is 
made out on merits, it is free to discharge or acquit the 
accused without waiting for conclusion of the trial.  
64. 
 
The amendment in Section 494 Cr.P.C. has not 
only undermined the independence of judiciary by 
substituting the Court, before whom the trial of an accused 
was pending, with the Review Board, but, at the same time, 
Const.P.76/2007, etc. 
 
90 
had also created discrimination with the accused, who were 
facing trial prior to 1st January, 1986 or had been charged for 
the offence after 12th October, 1999. The preamble of the 
NRO, 2007 coupled with any of its substantive part, had not 
disclosed the reasons, calling for so called ‘national 
reconciliation’ in between this period, presuming that an 
accused, facing charge entailing major penalty of death, is not 
entitled for discharge, by means of extra judicial forum, or for 
the same treatment, if he has committed the crime after 13th 
October, 1999, and up till now. We have posed a question to 
ourselves i.e. whether there had been no political 
victimization after 12th October, 1999 uptill now, on account 
of which accused persons were involved falsely in the 
commission of the offence but we could not succeed in 
getting the answer of the same except observing that specific 
dates were incorporated in the NRO, 2007 for achieving 
specific object as well as the specific purpose, which has been 
highlighted by one of the learned counsel, whose argument 
in this behalf has been noted hereinabove.  
65. 
 
Somehow, the Indian Supreme Court had to face 
with identical situation in Rajender Kumar v.  State (AIR 
1980 SC 1510). As per the facts of the case, the Government of 
India, in exercise of powers conferred by Section 196(1)(a) of 
Const.P.76/2007, etc. 
 
91 
the Code of Criminal Procedure 1973, and Section 7 of the 
Explosive Substances Act, 1908, by its order dated 6th 
September, 1976 accorded sanction for the prosecution of 
George 
Mathew 
Fernandes 
alias 
George 
Fernandes, 
Chairman of Socialist Party of India and Chairman of All 
India Railwaymen's Federation and 24 others, for alleged 
offences under Sections 121-A & 120-B of Indian Penal Code, 
read with Sections 4, 5 and 6 of Explosive Substances Act, 
1908 and Sections 5(3)(b) and 12 of the Indian Explosives Act, 
1884, on the allegations that after the issuance of the 
proclamation of Emergency on 25th  June, 1975 by the 
President of India in exercise of the powers conferred by 
clause (1) of Article 352 of the Constitution, George Mathew, 
sought to arouse resistance against the said emergency by 
declaring that the said emergency had been "clamped" on the 
country by the "despotic rule" of Smt. Indira Gandhi, Prime 
Minister of India and to entertain an idea that a conspiracy be 
hatched with the help of the persons of his confidence, to 
over-awe the Government and in pursuance of the 
conspiracy do such acts which might result in the destruction 
of public property and vital installations in the country. On 
24th September, 1976 the Deputy Superintendent of Police, 
Special Police Establishment Central Bureau of Investigation, 
filed a charge-sheet in the Court of the Chief Metropolitan 
Const.P.76/2007, etc. 
 
92 
Magistrate, Delhi, against the said accused persons for the 
offences mentioned in the order sanctioning the prosecution. 
Besides the accused, who were sent up for trial, two accused, 
namely, Shri Bharat C. Patel and Rewati Kant Sinha were 
granted pardon by the Court and were examined as approver 
under Section  306(4) Cr.P.C., notwithstanding the fact that 
the case was exclusively triable by the Court of Session. Out 
of 25, two accused namely Ladli Mohan Nigam and Atul 
Patel were declared proclaimed offenders by the Court. At 
that stage, on March 26, 1977, N. S. Mathur, Special Public 
Prosecutor filed an application under section 321 of the 
Criminal Procedure Code 1973, for permission to withdraw 
from the prosecution. On the same day the Chief 
Metropolitan Magistrate, expressed the opinion that it was 
"expedient to accord consent to withdraw from the 
prosecution", granted his consent for withdrawal from the 
prosecution. One Dr. Rajender Kumar Jain, an Advocate, 
filed a petition in the High Court of Delhi, under Section 397 
of the Criminal Procedure Code for revision of the order of 
the Chief Metropolitan Magistrate giving his consent to the 
Special Public Prosecutor to withdraw from the prosecution, 
but the same was dismissed on the ground that the applicant 
had no locus standi. Dr. Rajender Kumar Jain filed appeal 
before the Supreme Court of India, after obtaining special 
Const.P.76/2007, etc. 
 
93 
leave from the Court, mainly on the ground that the Public 
Prosecutor had abdicated his function and had filed the 
application at the behest of the Central Government without 
applying his mind, and that S. N. Mathur who had filed the 
application for withdrawal from the prosecution was not the 
Public Prosecutor, in-charge of the case and the application 
was therefore, incompetent. The Supreme Court, ultimately, 
while dismissing the petitions for leave to appeal, concluded 
as under:- 
25. 
Before bidding farewell to these cases it may be 
appropriate for us to say that Criminal justice is not a 
plaything and a Criminal Court is not a play-ground for 
politicking. 
Political 
fervour 
should 
not 
convert 
prosecution into persecution, nor political favour 
reward wrongdoer by withdrawal from prosecution. If 
political fortunes are allowed to be reflected in the 
processes of the Court very soon the credibility of the 
rule of law will be lost. So we insist that Courts when 
moved for permission for withdrawal from prosecution 
must be vigilant and inform themselves fully before 
granting consent. While it would be obnoxious and 
objectionable for a Public Prosecutor to allow himself to 
be ordered about, he should appraise himself from the 
Government and thereafter appraise the Court the host 
of factors relevant to the question of withdrawal from 
the cases. But under no circumstances should he allow 
himself to become anyone's stooge. 
 
Const.P.76/2007, etc. 
 
94 
The provision of Section 2 of the NRO, 2007, is also contrary 
to the dictum laid down in Saad Shibli’s case (PLD 1981 SC 
617), wherein it has been held as under:- 
13. 
A bare reading of this section discloses that the 
statute conferring the power of withdrawal on the 
Public Prosecutor prescribes no guidelines and indicates 
no controlling features, except that such a power can be 
exercised before the judgment is pronounced and is 
subject to "consent of the Court". From such a general 
dispensation certain consequences necessarily follow. In 
the first place, the power conferred is of the widest 
amptitude but not so wide as to amount to a fiat or ipsi 
dixit of the Public Prosecutor. Such a limitation 
necessarily follows the requirement of "consent of the 
Court." It has been held that "where Court's permission 
is sought or required, such a motion seeks the active 
exercise of the sound judicial discretion of the Court" 
(22 A C J S 7). Judicial discretion of the Court is required 
to be exercised according to reasonably well settled 
principles, which are capable of being formulated and 
applied 
as 
standards 
by 
higher 
Courts 
when 
entertaining appeals against the manner in which they 
have been exercised. In this sense, therefore, "judicial" 
refers to the exercise of discretion in accordance with 
"objective" 
standards 
as 
opposed 
to 
subjective 
considerations of policy and expediency." 
66. 
 
Above discussion, in the light of the facts 
disclosed by the learned Advocate General Sindh, persuades 
us to hold that the classification amongst the accused 
persons, facing trial during the specific period i.e. 1st January 
Const.P.76/2007, etc. 
 
95 
1986 to 12th October 1999, is based on arbitrariness and no 
reasons have been disclosed in the NRO, 2007 for entering 
into so called ‘reconciliation’ with particular group of 
accused 
persons, 
except 
in 
the 
name 
of 
‘national 
reconciliation’ on the pretext that the cases were politically 
motivated against them. Therefore, the NRO, 2007 to the 
extent of discussion on Section 2, is arbitrary and irrational as 
it has failed the test of reason to conclude in its favour that it 
is not a bad law. Similarly on the basis of intelligible 
differentia for reasonable classification, the differentiation 
has not been understood logically and it seems that for 
specific purpose, an artificial grouping was made, causing 
injustice to the accused persons, who were placed in the 
same position and instead of achieving the ‘national 
reconciliation’ the NRO, 2007 had served the purpose of 
‘individual reconciliation’. 
67. 
 
It has been argued by one of the learned counsel 
i.e. Mr. Abdul Hafeez Pirzada, Sr. ASC that by means of 
Section 6 of the NRO, 2007, a new provision i.e. (aa) has been 
added in Section 31A of the NAO, 1999 and stated that this 
provision is contrary to Article 63(1)(p) of the Constitution, 
for the reason that if ‘holder of public office’ is an absconder, 
in view of conviction recorded against him in absentia under 
Const.P.76/2007, etc. 
 
96 
Section 31A of the NAO, 1999, such ‘holder of public office’ is 
not competent to sit in the Parliament on the basis of his 
conviction as well as morality. Therefore, by promulgation of 
Section 6 of the NRO, 2007, conscience of the Constitution 
has been divorced. Reliance in this behalf has been placed by 
him upon Jamal Shah v. Election Commission (PLD 1966 SC 
1) and Benazir Bhutto  v.  Federation of Pakistan (PLD 1988 
SC 416). On the Court’s question, he replied that if Section 6 
of the NRO, 2007 is declared void for these two reasons, then 
the convicts must surrender before the will of the 
Constitution. He added that this is the mandate of the 
Constitution. According to him if Article 63(1)(p) of the 
Constitution could not be considered to be self-executory 
then no other provision of the law could be so dealt with. 
68. 
 
It 
would 
be 
advantageous 
to 
reproduce 
hereinbelow Section 31A of the NAO, 1999:- 
“31A. Absconding to avoid service of warrants 
Whoever absconds in order to avoid being served with 
any process issued by any Court or any other authority 
or officer under this Ordinance or in any manner 
prevents, avoids or evades the service on himself of 
such process or conceals himself to screen himself from 
the proceedings or punishment under this Ordinance 
shall be guilty of an offence punishable with 
imprisonment which may extend to three years 
notwithstanding the provisions of section 87 and 88 of 
Const.P.76/2007, etc. 
 
97 
Code of Criminal Procedure, 1898, or any other law for 
the time being in force.” 
 
The above Section has been amended by means of Section 6 
of the NRO, 2007, which reads as under:- 
“6. Amendment of section 31A, Ordinance XVIII of 
1999. 
In the said Ordinance, in section 31A, in clause (a), for 
the full stop at the end a colon shall be substituted and 
thereafter the following new clause (aa) shall be 
inserted, namely:- 
“(aa) An order or judgment passed by the Court in 
absentia against an accused is void ab initio and 
shall not be acted upon.” 
 
As far as Article 63(1)(p) of the Constitution, referred to by 
the learned counsel, relating to disqualification for becoming 
the member of the Parliament, is concerned, it provides that a 
person shall be disqualified from being elected or chosen, as 
and 
from, being 
a member of the Majlis-e-Shoora 
(Parliament) if he has been convicted and sentenced to 
imprisonment for having absconded by a competent Court 
under any law for the time being in force. On Court’s query, 
NAB has provided the list of the persons, convicted under 
Section 31A of the NAO, 1999 because we wanted to 
ascertain whether there is any case of convict/absconder 
who has been extended benefit of this provision. In view of 
available material, it was considered appropriate to examine 
Const.P.76/2007, etc. 
 
98 
the constitutionality/ vires of this provision of the NRO, 2007 
as well.  
69. 
 
It is important to note that this Court has earlier 
granted relief to the convicts under Section 31A; firstly in an 
unreported judgment in Gulzaman Kasi  v. The State 
(Criminal Appeal No. 269 of 2003), wherein allegation 
against the appellant was that he in his capacity as the 
Minister for Development Government of Balochistan/ 
Chairman, Quetta Development Authority, in connivance 
with Mr. Abdus-Saleem Durrani, Director General, converted 
a plot meant for school/play ground, into six residential 
plots and allotted the same to their close relatives and 
associates and thereby committed offence under Section 9(b) 
of the NAO, 1999. The learned Bench of three Hon’ble Judges 
of this Court, has held that the impugned conviction of the 
appellant cannot be sustained for two reasons; firstly that 
trial in absentia has been declared violative of Article 9 of the 
Constitution in Mehram Ali  v. Federation of Pakistan (PLD 
1998 SC 1445); and secondly appellant was subsequently 
arrested in the matter and was tried on the allegations which 
form subject matter of the reference, in which he was 
convicted in absentia; his appeal was dismissed by High 
Court of Balochistan and his Criminal Petition No. 68-Q of 
2003 is pending decision before this Court and would be 
Const.P.76/2007, etc. 
 
99 
decided along with this appeal; therefore, the convict was 
released.  
70. 
 
It is to be noted that this case is distinguishable 
from the case relating to disqualification of a person being 
elected as a member of the Parliament, or from being a 
member of the Parliament, because the question as to 
whether he has been rightly convicted in absentia or 
otherwise, is to be decided by the Court of law and the 
powers of the Court could not be substituted or conferred 
according to Section 6 of the NRO, 2007 on the legislature to 
declare that an order or judgment passed by a Court of 
competent jurisdiction in absentia is void ab initio and shall 
not be acted upon. It may also be kept in mind that; firstly 
Section 6 of the NRO, 2007 is general in its nature and benefit 
of the same can be derived by a candidate for becoming the 
member of the Parliament, or a member of the Parliament, or 
by other ordinary person; secondly, it has not been made 
applicable for a specific period. Therefore, if it being an 
amended provision continued to remain intact for all the 
times to come, conviction in absentia under Section 31A of 
the NAO, 1999 shall be void and for all practical purposes 
Section 31A of the NAO, 1999 shall be deemed to have been 
annulled. Before proceeding further, it is necessary to answer 
that the observation made in Mehram Ali’s case (PLD 1998 
Const.P.76/2007, etc. 
 
100 
SC 1445) and in Gulzaman Kasi’s case (Criminal Appeal No. 
269 of 2003) could have not been made in view of the 
distinctive facts, namely, in the said case Court was 
authorized to remove the accused from the Court on his 
misbehaviour and in his absence the trial was concluded and 
he was sentenced to death, therefore, it was considered 
violation of Article 9 of the Constitution. Be that as it may, 
Hon’ble same Judge of this Court i.e. Mr. Justice Tassaduq 
Hussain Jillani, in his subsequent judgment in the case of 
Manzoor Qayyum  v.  The State  (PLD 2006 SC 343) has held 
as follows :- 
 “6. The question whether the petitioner had 
absconded, "in order to avoid being served with any 
process issued by any Court or any other authority or 
officer under this Ordinance" would be a question of 
fact to , be decided by the Trial Court in the light of 
the material brought before it. The reference by 
learned counsel for the petitioner to a judgment of the 
Karachi High Court, Noor Muhammad Khatti and 
others v. The State 2005 PCr.LJ 1889 may not be 
relevant at this stage before this Court. It rather 
contains instructive guidelines for a Trial Court 
seized of a case under section 31-A of the NAB 
Ordinance. In the said case, the learned Karachi High 
Court delved at length on the scope of the afore-
referred 
section, 
the 
nature 
of 
evidence 
the 
prosecution has to produce to prove the avoidance of 
service of notice or of execution of warrants 
particularly when an accused allegedly leaves the 
Const.P.76/2007, etc. 
 
101 
country. But having observed all this, the Court 
directed the appellant to appear before the Trial Court 
"as and when required by the said Courts for further 
proceedings in accordance with law". In the case of 
N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR 
(29) 1942 Madras 289, a trial Magistrate had issued 
warrants of attachment and proclamation on account 
of non-appearance of the accused and the same were 
set aside by the High Court but the main complaint 
pending before the said Magistrate was not interfered 
with. The High Court held as under:- 
  
"It is obvious that when the Magistrate was 
informed that the petitioner had already left 
India, 
the 
orders 
for 
attachment 
and 
proclamation are without jurisdiction, unless he 
was satisfied that the accused was willfully 
absconding, knowing of the warrant. He could 
not have known of the warrant which was 
issued after he had left India. When it was clear 
that the accused had left India in March, it 
could not possibly be said that he absconded or 
that he is concealing himself so that the warrant 
cannot be executed, which is a condition 
precedent under S.87, Criminal P.C. for the 
issue of a proclamation. It is also a condition 
precedent for the issue of attachment under 
S.88. It was at first said that the petitioner was 
still in India and that he is concealing himself 
somewhere in India. If this is so, the action of 
the Magistrate would be perfectly justified. I 
asked the complainant whether he would state 
so in an 'affidavit, and I gave him an 
opportunity of stating it in an affidavit. In the 
affidavit filed by him he has not contradicted 
the statement made on behalf of the petitioner 
that he left India in March. Under these 
circumstances, I hold that the orders of 
proclamation and attachment are without 
jurisdiction and as such they are set aside." 
  
7. In the instant case as well, the learned High Court 
while setting aside the conviction under section 31-A 
of NAB Ordinance, left the matter to Trial Court to 
Const.P.76/2007, etc. 
 
102 
decide it afresh. The precise question which the 
learned Trial Court would be seized of now is 
whether the allegation of absconsion or avoidance of 
service of the process of the Trial Court is borne out 
from the record or material placed before it or not. 
This Court would not pre-empt the function of the 
Trial Court. In these circumstances, the judgment of 
the learned High Court is unexceptionable. However, 
the petitioner would be within his right to move an 
application under section 265-K, Cr.P.C. and if such 
an application is moved, the learned Trial Court shall 
decide 
the 
same 
on 
merit 
with 
independent 
application of mind within 15 days of its presentation 
as assured by learned Deputy Prosecutor General of 
NAB.” 
71. 
 
On having gone through the above judgment, it is 
crystal clear that offence falling within the mischief of Section 
31A of the NAO, 1999 is distinct offence, from the allegations 
made in the reference, which was filed against an accused 
and if the convict has been acquitted in the reference or the 
reference has been withdrawn, even then the conviction 
under Section 31A of the NAO, 1999 remain operative and 
the convict has to avail remedy, for getting it set aside, by 
approaching the next higher judicial forum, as envisaged 
under Section 32 of the NAO, 1999.  
72. 
 
As discussed above, conviction in absentia is a 
final order, therefore, no other forum can declare such 
Const.P.76/2007, etc. 
 
103 
conviction as void, except a judicial forum, that too, by filing 
an appeal. But in instant case, as it has been pointed out 
hereinabove, by amending a law, such conviction has been 
declared void, therefore, the amendment in Section 31A of 
the NAO, 1999 by inserting clause (aa), by means of Section 6 
of the NRO, 2007, is declared void being against the 
provisions of Section 31A read with Section 32 of the NAO, 
1999, which provides remedy to the convict to file appeal.  
73. 
 
There is another judgment in the case of The 
State  v.  Aftab Ahmed Khan Sherpao (PLD 2005 SC 399), in 
which appeal filed by the State against the acquittal of the 
respondent, has been dismissed, inter alia, for the reason that 
the respondent convict under Section 31A of the NAO, 1999, 
voluntarily surrendered himself before the High Court, 
where appeal against his conviction was pending; he was 
acquitted of the charge under Section 31A by the High Court, 
which was considered to be unexceptional and the State 
appeal was dismissed. This Court in another judgment in 
State v. Naseem-ur-Rehman (2004 SCMR 1943) in respect of 
the respondent, convicted under Section 31A of the NAO, 
1999 observed that it was obligatory upon the convict to 
approach the Court; first of all he should surrender to the 
order of his imprisonment, meaning thereby that on 
Const.P.76/2007, etc. 
 
104 
surrendering before the Court he should be taken into 
custody and the Court might order for his release in appeal 
and if such person is not taken into custody or not admitted 
to bail, then he will be deemed to be fugitive from law and 
would not be entitled to any relief.  
74. 
 
The above discussion poses another important 
question, namely, whether the legislature by means of an 
enactment can undo the effect of the judgment in which the 
person has been convicted for an offence and if he is ‘holder 
of public office’, his such conviction is a disqualification to be 
elected as a member of the Parliament, or to be a member of 
the Parliament, under Article 63(1)(p) of the Constitution? In 
this behalf the simple answer would be that with reference to 
a person, who intended to become the member of the 
Parliament, or is a member of the Parliament, no legislation is 
possible to grant him relief in presence of the provisions of 
the Constitution, being a parent law. It is well settled by the 
time that no legislation on any subject is permissible which is 
against the specific provision of the Constitution. In this 
behalf we are fortified with the judgment in Wattan Party  v. 
Federation of Pakistan  (PLD 2006 SC 697), wherein it has 
been held as under:- 
“……………… Besides it is an accepted principle of the 
Constitutional jurisprudence that a Constitution being a 
Const.P.76/2007, etc. 
 
105 
basic document is always treated to be higher than 
other statutes and whenever a document in the shape of 
law given by the Parliament or other competent 
authority is in conflict with the Constitution or is 
inconsistent then to that extent the same is liable to be 
declared un-Constitutional. This is not for the first time 
that a law like Ordinance 2000 has come for 
examination before the Court as in the past a number of 
laws were examined and when found against the 
Constitution the same were declared void and of no 
legal effect. ……………………. (emphasis provided). 
 
75. 
 
It is also important to note that this law has 
opened the door of the Parliament, for the persons, convicted 
in absentia, as the disqualification for a person to become a 
member of Parliament and for a member of Parliament under 
Article 63(1)(p) of the Constitution has been removed by 
means of clause (aa) inserted in Section 31A of the NAO, 
1999, a person, who has been convicted under Section 31A of 
the NAO, 1999, in absentia, with a stigma of a convict, has 
been made qualified to enter into the Parliament, contrary to 
the Constitutional provisions as well as law laid down in the 
case of Abdul Baqi v. Muhammad Akram   (PLD 2003 SC 
163).      
76. 
 
As far as nullifying the effect of a judgment by 
means of a legislation is concerned, there are certain 
limitations including the one i.e. by amending the law with 
Const.P.76/2007, etc. 
 
106 
retrospective effect, on the basis of which the order or 
judgment has been passed, thereby removing the basis of the 
decision. Reference in this behalf can be made to Tofazzal 
Hossain   v.  Province of East Pakistan (PLD 1963 SC 251), 
Tirath Ram Rajindra Nath v. State of U.P. (AIR 1973 SC 
405), Mamukanjan Cotton Factory   v.  Punjab Province 
(PLD 1975 SC 50) and Misrilal Jain v. State of Orissa (AIR 
1977 SC 1686). However, in the case of I.N. Saksena v. State 
of Madhya Pradesh (AIR 1976 SC 2250), following principle 
has been laid down:- 
“Firstly, whether the legislature possesses competence 
over the subject matter, and, secondly, whether by 
validation the legislature has removed the defect which 
the courts had found in the previous law. To these we 
may add a third. Whether it is consistent with the 
provisions of Part III of the Constitution. 
 
It is to be noted that the NAB has placed on record the 
material pointing out the names of the beneficiaries, who 
have derived benefit under Section 6 of the NRO, 2007 but 
applying the test laid down hereinabove, we can safely 
conclude that the insertion of clause (aa) in Section 31A of the 
NAO, 1999 is without lawful authority, as it has not amended 
the original Section 31A of the NAO, 1999, which is still 
intact with all its consequences and effects. It is pertinent to 
mention here that the language used in an enactment must 
Const.P.76/2007, etc. 
 
107 
show the intention of the lawgiver that it would apply with 
retrospective effect and shall be deemed always to have been 
so inserted in the respective statute.  In this behalf reference 
may be made to Fecto Belarus Tractor  v. Government of 
Pakistan (PLD 2005 SC 605). Relevant para therefrom is 
reproduced hereinbelow for convenience:- 
54. 
Besides, 
the 
language 
used 
in 
both 
the 
Ordinances manifests clear intention of the law giver 
that it would apply with retrospective effect and shall 
be deemed always to have been so inserted in 
respective statutes. Identical language was used in 
section 5 of the Finance Act 1988 in pursuance whereof 
section 31-A was inserted in the Customs Act,1969 with 
retrospective effect. This Court had occasion to examine 
this provision of law in Molasses Trading and Export 
(ibid). Relevant paras, therefrom read as under:- 
“……..Before considering this question it would 
be 
appropriate 
to 
make 
certain 
general 
observations with regard to the power of 
validation possessed by the legislature in the 
domain of taxing statutes. It has been held that 
when a legislature intends to validate a tax 
declared by a Court to be illegally collected under 
an invalid law, the cause for ineffectiveness or 
invalidity must be removed before the validation 
can be said to have taken place effectively. It will 
not be sufficient merely to pronounce in the 
statute by means of a non obstante clause that the 
decision of the Court shall not bind the 
authorities, because that will amount to reversing 
a judicial decision rendered in exercise of the 
judicial power which is not within the domain of 
the legislature. It is therefore necessary that the 
conditions on which the decision of the Court 
intended to be avoided is based, must be altered 
so fundamentally, that the decision would not 
any 
longer 
be 
applicable 
to 
the 
altered 
circumstances. One of the accepted modes of 
Const.P.76/2007, etc. 
 
108 
achieving this object by the legislature is to re-
enact retrospectively a valid and legal taxing 
provision, and adopting the fiction to make the 
tax already collected to stand under the re-
enacted law. The legislature can even give its own 
meaning and interpretation of the law under 
which the tax was collected and by “legislative 
fait” make the new meaning binding upon 
Courts. It is in one of these ways that the 
legislature can neutralize the effect of the earlier 
decision of the Court. The legislature has, within 
the bounds of the Constitutional limitations, the 
power to make such a law and give it 
retrospective effect so as to bind even past 
transactions. In ultimate analysis, therefore, the 
primary test of validating piece of legislation is 
whether the new provision removes the defect 
which the Court had found in the existing law 
and 
whether 
adequate 
provisions 
in 
the 
validating law for a valid imposition of tax were 
made…………………………………………………
……… it is clear from the provisions of section 5 
of the Finance Act, 1988 that by the device of the 
deeming clause the newly-inserted section 31-A is 
to be treated as part and parcel of the Act since its 
enforcement in 1969. Undoubtedly, therefore, the 
section is retrospective in operation. It is agreed 
on all hands that the well-settled principles of 
interpretation of statutes are that vested rights 
cannot be taken away save by express words or 
necessary intendment. It also cannot be disputed 
that the legislature, which is competent to make a 
law, has full plenary powers within its sphere of 
operation 
to 
legislate 
retrospectively 
or 
retroactively. Therefore, vested rights can be 
taken away by such a legislation and it cannot be 
struck down on that grounds. However, it has 
also been laid down in Province of East Pakistan 
v. Sharafatullah PLD 1970 SC 514 that A statute 
cannot be read in such a way as to change 
accrued rights, the title to which consists in 
transactions past and closed or any facts or events 
that have already occurred. In that case that 
following postulation has been made:- 
“In other words liabilities that are fixed or 
rights that have been obtained by the 
operation of law upon facts or events for or 
perhaps it should be said against which the 
existing law provided are not to be 
disturbed by a general law governing 
Const.P.76/2007, etc. 
 
109 
future rights and liabilities unless the law 
so intends.” 
This is an important principle which has to be kept in 
mind in the context of the present case. Reference may 
also be made to another principle followed is several 
decisions but to quote from Mehreen Zaibun Nisa v. 
Land Commissioner, Multan (PLD 1975 SC 397) where 
it was observed: 
“When a statute contemplates that a state of 
affairs should be deemed to have existed, it 
clearly proceeds on the assumption that in fact it 
did not exist at the relevant time but by a legal 
fiction we are to assume as if it did exist. The 
classic statement as to the effect of a deeming 
clause is to be found in the observations of Lord 
Asquith in East End Dwelling Company Ltd. V. 
Finsbury 
Borough 
Council 
(1952)AC 
109) 
namely:- 
 
‘Where the statute says that you must 
imagine the state of affairs, it does not say 
that having done so you must cause or 
permit your imagination to boggle when it 
comes to the inevitable corollaries of that 
state of affairs.” 
However, in that case aforesaid principle was subjected 
in its application to a given case to condition that the 
Court has to determine the limits within which and the 
purposes for which the legislature has created the 
fiction. It has been quoted from an English decision that 
“When a statute enacts that something shall be deemed 
to have been done which in fact and in truth was not 
done, the Court is entitled and bound to ascertain for 
what purposes and between what persons the statutory 
fiction is to be resorted to.” 
77. 
 
The 
examination 
of 
the 
above 
principle 
abundantly makes it clear that since the basis of the 
judgment, in respect of conviction in absentia under Section 
Const.P.76/2007, etc. 
 
110 
31A of the NAO, 1999,  has not been removed, pointing out 
any defect in the same by the legislature, therefore, the 
legislature, by means of an enactment, could not give a 
judgment that conviction in absentia was void ab initio, rather 
for the purpose of declaring such judgments void ab initio, it 
was incumbent upon the legislature to have repealed Section 
31A of the NAO, 1999 because on the basis of the same the 
absconder accused were convicted. More so, to nullify the 
effect of a judgment, by means of a legislative enactment, we 
have to examine the nature of each judgment separately and 
individually but in instance case omni bus type order has 
been passed, declaring all the judgments recorded under 
Section 31A of the NAO, 1999 as void ab initio, without 
pointing out any defect in the same. Under the civil 
administration of justice, plethora of case law is available on 
the point that how an effect of a judgment can be nullified or 
neutralized, particularly the judgment in which, on the basis 
of existing laws, the Courts have come to the conclusion that 
the tax was not recoverable but the Government by issuing a 
legislation, with retrospective effect, has removed the defect 
in the law, thereby nullified the effect of the judgment, as a 
result whereof the Government continued to effect the 
recovery of tax. This is in respect of the civil matters, but in 
the criminal administration of justice we have not succeeded 
Const.P.76/2007, etc. 
 
111 
in laying hand on such identical principles, applied in civil 
cases, on the point, therefore, we have to rely upon Treaties 
on the Constitutional Limitation by Thomas M. Cooley, 
wherein it has been held as follows:- 
“If the legislature would prescribe a different rule for 
the future from that which the courts enforce, it must be 
done by statute, and cannot be done by a mandate to 
the courts, which leaves the law unchanged, but seeks 
to compel the courts to construe and apply it not 
according to the judicial, but according to the legislative 
judgment. But in any case the substance of the 
legislative action should be regarded rather than the 
form; and if it appears to be the intention to establish by 
declaratory statute a rule of conduct for the future, the 
courts should accept and act upon it, without too nicely 
inquiring whether the mode by which the new rule is 
established is the best, most decorous and suitable that 
could have been adopted or not. 
If the legislature cannot thus indirectly control the 
action of the courts, by requiring of them a construction 
of the law according to its own views, it is very plain it 
cannot do so directly, by setting aside their judgments, 
compelling them to grant new trials, ordering the 
discharge of offenders, or directing what particular 
steps shall be taken in the progress of a judicial 
inquiry.” 
 
78. 
 
However, in respect of criminal cases, this issue 
has to be approached differently than the matters relating to 
civil disputes, payment of taxes, etc. The legislative authority, 
Const.P.76/2007, etc. 
 
112 
ordinarily is not required to enter into the domain of 
judiciary. It has been noted, time and again, that under the 
scheme of the Constitution, the judiciary has an independent 
role, amongst three organs of the State, as it has been held in 
Mahmood Khan Achakzai’s case (PLD 1997 SC 426), 
Mehram Ali’s case (PLD 1998 SC 1445), Liaquat Hussain’s 
case  (PLD 1999 SC 504) and Syed Zafar Ali Shah’s case 
(PLD 2000 SC 869). Relevant extracts from the last mentioned 
judgment are reproduced hereinbelow for convenience:- 
“210. The independence of Judiciary is a basic principle 
of the constitutional system of governance in Pakistan. 
The Constitution of Pakistan contains specific and 
categorical 
provisions 
for 
the 
independence 
of 
Judiciary. The Preamble and Article 2A state that "the 
independence of Judiciary shall be fully secured"; and 
with a view to achieve this objective, Article 175 
provides 
that 
"the 
Judiciary 
shall 
be 
separated 
progressively from the executive". The rulings of the 
Supreme Court in the cases of Government of Sindh v. 
Sharaf Faridi (PLD 1994 SC 105, Al-Jehad Trust (supra) 
and Malik Asad Ali v. Federation of Pakistan (PLD 1998 
SC 161), indeed, clarified the constitutional provisions 
and thereby further strengthened the principle of the 
independence of Judiciary, by providing for the 
separation of Judiciary from the executive, clarifying the 
qualifications for appointment of Judges of the High 
Courts, prescribing the procedure and the time frame 
for appointment of Judges, appointment of Chief 
Justices and the transfer of a Judge from a High Court to 
Const.P.76/2007, etc. 
 
113 
the Federal Shariat Court. Furthermore, the Supreme 
Court judgments in the cases of Mehram Ali and 
Liaquat Hussain (supra) are also in line with the above 
rulings, in as much as, they elaborated and reiterated 
the 
principle 
of 
judicial 
independence 
and 
the 
separation of Judiciary from the executive. 
211. 
In 
a 
system 
of 
constitutional 
governance, 
guaranteeing Fundamental Rights, and based on 
principle of trichotomy of powers, such as ours, the 
Judiciary plays a crucial role of interpreting and 
applying the law and adjudicating upon disputes 
arising among governments or between State and 
citizens or citizens' inter se. The Judiciary is entrusted 
with the responsibility for enforcement of Fundamental 
Rights. This calls for an independent and vigilant 
system of judicial administration so that all acts and 
actions leading to infringement of Fundamental Rights 
are nullified and the rule of law upheld in the society. 
212. 
The Constitution makes it the exclusive power/ 
responsibility of the Judiciary to ensure the sustenance 
of system of "separation of powers" based on checks 
and balances. This is a legal obligation assigned to the 
Judiciary. It is called upon to enforce the Constitution 
and safeguard the Fundamental Rights and freedom of 
individuals. To do so, the Judiciary has to be properly 
organized and effective and efficient enough to quickly 
address and resolve public claims and grievances; and 
also has to be strong and independent enough to 
dispense justice fairly and impartially. It is such an 
efficient and independent Judiciary which can foster an 
appropriate legal and judicial environment where there 
is peace and security in the society, safety of life, 
protection of property and guarantee of essential 
Const.P.76/2007, etc. 
 
114 
human rights and fundamental freedoms for all 
individuals and groups, irrespective of any distinction 
or discrimination on the basis of cast; creed, colour, 
culture, gender or place of origin, etc. It is indeed such a 
legal and judicial environment, which is conducive to 
economic growth and social development.” 
The above principle has been reiterated in Sindh High Court 
Bar Association's case (PLD 2009 SC 879), with approval.  
79. 
 
Undoubtedly, the legislative authority has to 
perform those functions, which have been recognized by the 
Constitution. There is no such provision on the basis of 
which a judgment can be annulled, except in civil cases, that 
too, 
subject 
to 
following the principles laid down 
hereinabove. As far as matters relating to criminal 
administration of justice are concerned, where a judgment 
has been announced on the basis of law, the legislative 
authority cannot annul such judgment without pointing out 
any flaw in the law, which is the basis of such a judgment; as 
in the instant case, no amendment has been made in the 
original text of Section 31A of the NAO, 1999, therefore, it 
would lead us to the conclusion that the judgment 
pronounced under the law, by a Court of competent 
jurisdiction, is a judgment which has been pronounced 
legally, according to the mandate, conferred upon the Court 
and such judgment or order cannot be annulled by means of 
Const.P.76/2007, etc. 
 
115 
an enactment. It is well settled principle of law that upon 
feeling aggrieved by any judgment pronounced in the 
criminal administration of justice, the aggrieved person has 
been provided with the remedies to invoke the jurisdiction of 
the higher Courts, within the hierarchy. Similarly, in the case 
in hand, if a person is aggrieved by an order of 
conviction/sentence recorded against him under Section 31A 
of the NAO, 1999, he has remedy under Section 32 of the 
NAO, 1999 to file an appeal before the High Court.  
80. 
 
As it has been noted hereinabove that if the 
legislative authority is not aggrieved, in any manner, by the 
judgment pronounced by the Courts discharging its 
functions under Section 31A of the NAO, 1999, the said 
judgment could only be set aside, varied, suspended as per 
the procedure laid down in the NAO, 1999 and not by 
enforcing or adopting legislative measures. In this behalf, this 
Court, in Abdul Kabir  v. State (PLD 1990 SC 823), has 
highlighted this aspect, in the following manner:- 
“……………… A conviction is complete as soon as the 
person charged has been found guilty by a Court of 
competent jurisdiction. During the pendency of an 
appeal, appellate Court may suspend the sentence 
under section 426, Cr.P.C. So execution of sentence of 
petitioner is suspended and not his conviction which 
remains operative till it is set aside by the higher 
Const.P.76/2007, etc. 
 
116 
appellate Courts. Pendency of the appeal for decision 
does not ipso facto mean that the conviction is wiped 
out. The appellate Court has no authority under section 
426 to suspend the conviction. Conviction and sentence 
connote two different terms. Conviction means proving 
or finding guilty. Sentence is punishment awarded to a 
person convicted in criminal trial. Conviction is 
followed by sentence. It cannot be accepted as principle 
of law that till matter is finally disposed of by Supreme 
Court against convicted person, the conviction would 
be considered as held in abeyance. This interpretation is 
not in consonance with the spirit of law and against 
logical coherence. The suspension of sentence is only a 
concession to an accused under section 426, Cr.P.C. but 
it does not mean that the conviction is erased. 
Therefore, in view of the fourth proviso, the third 
proviso to section 497(1), Cr.P.C. is not attracted to the 
case of the petitioner.” 
 
In the case in hand, without any reasonable justification, 
both, the conviction and the sentence, have been declared 
void, by adding clause (aa) in Section 31A of the NAO, 1999, 
which definitely is against the norms and the principles of 
justice.  
81. 
 
The legislature is competent to legislate but 
without encroaching upon the jurisdiction of the judiciary. If, 
it is presumed that the insertion of clause (aa) in Section 31A 
of the NAO, 1999, by means of Section 6 of the NRO, 2007, is 
constitutionally valid even then it would be tantamount to 
Const.P.76/2007, etc. 
 
117 
allow the legislature to pronounce a judicial verdict against 
an order or judgment of a competent Court of law, declaring 
the same to be void ab initio. Therefore, following the 
doctrine of trichotomy of powers, the action of the legislative 
authority, whereby clause (aa) has been inserted in Section 
31A of the NAO, 1999, by means of the NRO, 2007, would be 
considered to be a step to substitute the judicial forum with 
an executive authority. Thus, it would not be sustainable 
being contrary to the principle of independence of judiciary, 
as mentioned in Article 2A of the Constitution, which 
provides that independence of judiciary shall be fully 
secured read with Article 175 of the Constitution, which lays 
down a scheme for the establishment of the Courts, including 
the superior Courts and such other Courts as may be 
established by law. In the case in hand, except an appeal 
under Section 32 of the NAO, 1999 to the High Court of the 
Province, no other remedy is available to a convict against his 
conviction/sentence, to get it set aside. For convenience, 
Section 32 of the NAO, 1999 is reproduced hereinbelow:-  
32. 
Appeal [and revision]: 
(a) 
Any person convicted or the Prosecutor General 
Accountability, if so directed by Chairman NAB, 
aggrieved by the final judgement and order of the 
Court under this Ordinance may, within ten days 
of the final judgement and order of the Court 
prefer an appeal to the High Court of the 
Province where the Court is situated: 
Const.P.76/2007, etc. 
 
118 
Provided that no appeal shall lie against any 
interlocutory order of the Court.  
(b) 
All Appeals against the final judgement and 
Order filed before the High Court will be heard 
by a Bench of not less than two judges constituted 
by the Chief Justice of the High Court and shall 
be finally disposed of within thirty days of the 
filing of the Appeal. 
(c) 
No revision shall lie against any interlocutory 
order of the Court.  
 
Thus, no other forum including the legislature is empowered 
to declare an order or judgment, whereby conviction has 
been recorded under Section 31A of the NAO, 1999, to be 
void ab initio except in civil cases pertaining to the tax 
matters, etc., as discussed above. As far as Articles 2A and 
175 of the Constitution are concerned, they furnish guarantee 
for securing the independence of judiciary. This is not the 
only case in which we are confronted with such situation. 
Right from the case of Government of Sindh  v. Sharaf 
Faridi  (PLD 1994 SC 105) to Mehram Ali’s case (PLD 1998 SC 
1445), followed by in Liaquat Hussain’s case (PLD 1999 SC 
504), this Court has always interpreted Article 175 of the 
Constitution read with one of the items of the Objective 
Resolution, which has been enshrined in Article 2A of the 
Constitution, guaranteeing independence of judiciary.  
 
 
The observations made above are not in 
derogation to the powers of the Parliament. There may 
indeed be cases in which Parliament may, by appropriate 
Const.P.76/2007, etc. 
 
119 
legislation, and by manifestation of appropriate intent and 
use of language, be competent to nullify the effect of a 
judgment in the given circumstances of the case. This, 
however, is not such a case as an unspecified number of 
convictions, on differing facts and evidence, are sought to be 
set aside in one swipe. This is going beyond legislative 
competence and Parliament itself wisely decided not to 
intervene to make permanent a temporary law (Ordinance) 
by enacting as an Act of Parliament. We are only endorsing 
the will of the elected representatives in following their 
intent.    
82. 
 
It may also be noted that Article 203 of the 
Constitution is also another important provision of the 
Constitution which provides that each High Court shall 
supervise and control all Courts subordinate to it. In this 
context following para from the Mehram Ali’s case (PLD 1998 
SC 1445), being advantageous is reproduced hereinbelow:- 
“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 
Const.P.76/2007, etc. 
 
120 
subordinate Courts referred to in Article 203 
thereof. 
(iii)   That our Constitution recognizes 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 tenure and other terms and conditions.” 
 
Const.P.76/2007, etc. 
 
121 
83. 
 
It is to be borne in mind that as per the dictum, 
laid down hereinabove, the intervention by the executive, 
contrary to the principles of independence of judiciary, has 
been declared unconstitutional. Reference in this behalf, if 
needed, may be made to short order in Mehram Ali’s case 
(PLD 1998 SC 1445) dated 15th May 1998, which is reproduced 
hereinbelow for ready reference:-  
"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 10 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 
Const.P.76/2007, etc. 
 
122 
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.” 
 
Subsequent thereto, Article 175 of the Constitution has been 
interpreted in Liaquat Hussain’s case (PLD 1999 SC 504). As 
per the facts of this case, petitioner Liaquat Hussain 
challenged the Pakistan Armed Forces (Acting in Aid of the 
Civil 
Power) 
Ordinance, 
1998 
promulgated 
on 
20th 
November, 1998 whereby the civilians were to be tried by the 
Military Courts for the civil offences, mentioned, inter alia, in 
the schedule of the Ordinance, on various grounds 
concerning the jurisdiction of the Courts to discharge judicial 
Const.P.76/2007, etc. 
 
123 
functions. The Court, while taking into consideration the 
principles highlighted in Mehram Ali’s case (PLD 1998 SC 
1445) observed as follows:- 
“15. The above-quoted extract from the above judgment 
in the case of Mehram Ali and others v. Federation of 
Pakistan and others (PLD 1998 SC 1445), indicates that it 
has been inter alia held that our Constitution recognises 
only such specific Tribunals to share judicial power 
with the Courts referred to in Articles 175 and 203, 
which 
have 
been 
specifically 
provided 
by 
the 
Constitution itself, like Federal Shariat Court (Chapter 
3-A of the Constitution), Tribunals under Article 212, 
Election Tribunals (Article 225) and 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. Admittedly the Military Courts to be 
convened under section 3 of the impugned Ordinance 
do not fall within the category of the Courts referred to 
in the above Articles. This was even so contended by 
the learned Attorney-General as reflected from his 
arguments reproduced hereinabove in para. 11. Neither 
the above Military Courts nor the personnel to man the 
same qualify the other requirements spelled out in the 
case of Mehram Ali reproduced hereinabove in para.14. 
The question which needs examination is, as to 
whether by virtue of invocation of Article 245 of the 
Constitution for calling the Armed Forces to act in aid 
of civil power, the impugned Ordinance could have 
been promulgated for convening Military Courts in 
terms of section 3 thereof. This will, inter alia involve 
Const.P.76/2007, etc. 
 
124 
the determination as to the meaning and import of the 
expression "The Armed Forces shall………and, subject 
to law, act in aid of civil power when called upon to do 
so" used in clause (1) of Article 245 of the Constitution. I 
may, at this stage, reproduce the above Article 245 of 
the Constitution, which reads as follows: 
"245. Functions of Armed Forces.-(1) The Armed 
Forces shall, under the directions of the Federal 
Government, defend Pakistan against external 
aggression or threat of war, and, subject to law, 
act in aid of civil power when called upon to do 
so. 
(2) The validity of any direction issued by the 
Federal Government under clause (1), shall not be 
called in question in any Court. 
(3) A High Court shall not exercise any 
jurisdiction under Article 199 in relation to any 
area in which the Armed Forces of Pakistan are, 
for the time being, acting in aid of civil power in 
pursuance of Article 245: 
Provided that this clause shall not be deemed to 
affect the jurisdiction of the High Court in respect 
of any proceeding pending immediately before 
the day on which the Armed Forces start acting in 
aid of civil power. 
(4)  Any proceeding in relation to an area referred 
to in clause (3) instituted on or after the day the 
Armed Forces start acting in aid of civil powers 
and pending in any High Court shall remain 
suspended for the period during which the 
Armed Forces are so acting." 
It may be highlighted that the original Article 245 
comprised what is now clause (1) thereof. Clauses (2) to 
(4) 
were 
added 
by 
the 
Constitution 
(Seventh 
Amendment) Act, 1977 (Act 23 of 1977) with effect from 
21st April, 1977. 
It may be stated that the above-quoted clause (1) 
imposes two Constitutional duties on the Armed Forces 
Const.P.76/2007, etc. 
 
125 
to be performed upon the direction of the Federal 
Government: 
(i)  
To 
defend 
Pakistan 
against 
external 
aggression or threat of war; and 
(ii)  subject to law, act in aid of civil power when 
called upon to do so. 
Whereas clause (2) thereof lays down that the validity 
of any direction issued by the Federal Government 
under clause (1) shall not be called in question in any 
Court. 
It may further be noticed that clause (3) thereof 
provides that a High Court shall not exercise any 
jurisdiction under Article 199 in relation to any area in 
which the Armed Forces of Pakistan are, for the time 
being, acting in aid of civil power in pursuance of 
Article, but subject to the proviso that the jurisdiction of 
the High Court is not to be affected in respect of the 
proceedings pending immediately before the day on 
which the Armed Forces start acting in aid of civil 
power. 
It may also be pointed out that clause (4) thereof lays 
down that any proceedings in relation to an area 
referred to in clause (3) instituted on or after the day the 
Armed Forces start acting in aid of civil powers and 
pending in any High Court shall remain suspended for 
the period during which the Armed Forces are so 
acting.” 
84. 
 
It is worth mentioning that in the above referred 
case, Military Courts were established to try the civilians to 
meet the challenge of terrorism, inter alia, for one of the 
reasons that the cases of terrorists are not being disposed of 
Const.P.76/2007, etc. 
 
126 
expeditiously. This Court declared that the trial of the 
civilians under the impugned Ordinance, so far as it laid 
down the establishment of the Military Courts, was 
unconstitutional. Contents of the operative para from the 
short order dated 17th February, 1999 are reproduced 
hereinbelow:- 
“After hearing the learned counsel for the petitioners, 
the petitioners in person, the learned Attorney-General 
for Pakistan and the learned Advocate-General, Sindh, 
for the reasons to be recorded later, we are of the view 
that Ordinance No.Xll of 1998 as amended up to date in 
so far as it allows the establishment of Military Courts 
for trial of civilians charged with the offences 
mentioned in section 6 and the Schedule to the above 
Ordinance is unconstitutional, without lawful authority 
and of no legal effect and that the cases in which 
sentences have already been awarded but the same 
have not yet been executed shall stand set aside and the 
cases stand transferred to the Anti-Terrorist Courts 
already in existence or which may hereinafter be 
created in terms of the guidelines provided hereunder 
for disposal in accordance with the law. The evidence 
already recorded in the above cases and the pending 
cases shall be read as evidence in the cases provided 
that it shall not affect any of the powers of the Presiding 
Officer in this regard as is available under the law. The 
above declaration will not affect the sentences and 
punishments already awarded and executed and the 
cases will be treated as past and closed transactions.” 
Const.P.76/2007, etc. 
 
127 
To ensure expeditious disposal of the case, the guidelines 
have also been provided under para 3, which reads as under:- 
“3. 
Since we are seized of these petitions in exercise 
of our Constitutional jurisdiction under Article 184(3) of 
the Constitution, we lay down the following guidelines 
which may contribute towards the achievement of the 
above objective: 
(i)  Cases relating to terrorism be entrusted to the 
Special Courts already established or which may 
be established under the Anti-Terrorism Act, 1997 
(hereinafter referred to as A.T.A.) or under any 
law in terms of the judgment of this Court in the 
case of Mehram Ali and others v. Federation of 
Pakistan (PLD 1998 SC 1445); 
(ii) One case be assigned at a time to a Special 
Court and till judgment is announced in such 
case, no other case be entrusted to it: 
(iii)   The concerned Special Court should proceed 
with the case entrusted to it on day to day basis 
and pronounce judgment within a period of 7 
days as already provided in A.T.A. or as may be 
provided in any other law: 
(iv)  Challan of a case should be submitted to a 
Special Court after full preparation and after 
ensuring that all witnesses will be produced as 
and when required by the concerned Special 
Court; 
(v) An appeal arising out of an order/judgment 
of the Special Court shall be decided by the 
appellate forum within a period of 7 days from 
the filing of such appeal: 
(vi)  Any lapse on the part of the Investigating 
and Prosecuting Agencies shall entail immediate 
disciplinary 
action 
according 
to 
the 
law 
applicable; 
(vii) The Chief Justice of the High Court 
concerned shall nominate one or more Judges of 
the High Court for monitoring and ensuring that 
the cases/appeals are disposed of in terms of 
these guidelines; 
Const.P.76/2007, etc. 
 
128 
(viii) That the Chief Justice of Pakistan may 
nominate one or more Judges of the Supreme 
Court to monitor the implementation of the above 
guidelines. The Judge or Judges so nominated 
will also ensure that if any petition for leave/or 
appeal with the leave is filed, the same is 
disposed of without any delay in the Supreme 
Court; 
(ix)   That besides invoking aid of the Armed 
Forces in terms of sections 4 and 5 of the A.T.A., 
the assistance of the Armed Forces can be pressed 
into service by virtue of Article 245 of the 
Constitution at all stages including the security of 
the Presiding Officer, Advocates and witnesses 
appearing in the cases, minus the process of 
judicial adjudication as to the guilt and quantum 
of sentence, till the execution of the sentence." 
 
Inter alia, mechanism was provided for appointment of 
monitoring teams by the Chief Justice of the High Court 
concerned, who were required to nominate one or more 
judges of the High Court for monitoring and ensuring that 
the cases/appeals shall be disposed of in terms of these 
guidelines. However, Chief Justice of Pakistan was also 
allowed to nominate one or more Judges of the Supreme 
Court to monitor the implementation of the above guidelines 
and to ensure that if any petition for leave to appeal or any 
appeal with the leave is filed, the same is disposed of without 
any delay in the Supreme Court, etc.  
85. 
 
Essentially, the above guidelines/directions for 
expeditious disposal of cases were issued by this Court, in 
exercise of its powers under Article 187 of the Constitution, 
which provides that Supreme Court shall have power to 
Const.P.76/2007, etc. 
 
129 
issue such directions, orders or decrees, as may be necessary 
for doing complete justice in any case or matter pending 
before it, including an order for the purpose of securing the 
attendance of any person or the discovery or production of 
any document. This Article of the Constitution has been 
interpreted in so many cases. However, reference is being 
made only to Sabir Shah’s case (PLD 1995 SC 66). Relevant 
para therefrom is reproduced hereinbelow for convenience:- 
“10. The Supreme Court is the apex Court. It is the 
highest and the ultimate Court under the Constitution. 
In my view the inherent and plenary power of this 
Court which is vested in it by virtue of being the 
ultimate Court, it has the power to do complete justice 
without in any manner infringing or violating any 
provision of law. While doing complete justice this 
Court would not cross the frontiers of the Constitution 
and law. The term "complete justice" is not capable of 
definition with exactitude. It is a term covering variety 
of cases and reliefs which this Court can mould and 
grant depending upon the facts and circumstances of 
the case. While doing complete justice formalities and 
technicalities should not fetter its power. It can grant 
ancillary relief, mould the relief within its jurisdiction 
depending on the facts and circumstances of the case, 
take additional evidence and in appropriate cases even 
subsequent events may be taken into consideration. 
Ronald Rotunda in his book "Treatise on Constitutional 
Case Substance" (Second-Edition), Volume 2 at page 90 
has stated that "The Supreme Court is an essence of a 
continual Constitutional convention". The jurisdiction 
Const.P.76/2007, etc. 
 
130 
and the power conferred on the Supreme Court does 
empower it to do complete justice by looking to the 
facts, circumstances and the law governing a particular 
case. Article 187 does not confer any jurisdiction. It 
recognises inherent power of an apex Court to do 
complete justice and issue orders and directions to 
achieve that end. Inherent justification is vested in the 
High Court and subordinate Courts while dealing with 
civil and criminal cases by virtue of provisions of law. 
The inherent jurisdiction of this Court to do complete 
justice cannot be curtailed by law as it may adversely 
affect 
the 
independence 
of 
judiciary 
and 
the 
fundamental right of person to have free access to the 
Court for achieving complete justice. This enunciation 
may evoke a controversy that as Article 175(2) restricts 
Article 187 it will create conflict between the two. There 
is no conflict and both the Articles can be read together. 
The conflict in the provisions of the Constitution should 
not be assumed and if apparently there seems to be any, 
it has to be interpreted in a harmonious manner by 
which both the provisions may co-exist. One provision 
of the Constitution cannot be struck down being in 
conflict with the other provision of the Constitution. 
They have to live together, exist together and operate 
together. Therefore, while interpreting jurisdiction and 
power of the superior Courts one should look to the 
fundamental rights conferred and the duty cast upon 
them under the Constitution. A provision like Article 
187 cannot be read in isolation but has to be interpreted 
and read harmoniously with other provisions of the 
Constitution. In my humble view this Court while 
hearing appeal under a statute has the jurisdiction and 
power to decide the question of vires of the statute 
Const.P.76/2007, etc. 
 
131 
under which the appeal has arisen and can even invoke 
Article 184(3) in appropriate cases.” 
86. 
 
This Court, while hearing the petition under 
Article 184(3) of the Constitution, enjoys ample powers 
under Article 8 of the Constitution, to declare any law 
inconsistent with the fundamental rights conferred by the 
Constitution or to examine the constitutionality of such law, 
on the touchstone of any other provision of the Constitution. 
While exercising its constitutional powers, conferred upon 
this Court under various provisions of the Constitution, 
including Articles 184, 185, 187(1) and 212(3), it also enjoys 
enormous powers of judicial review. Besides, it is well settled 
by the time that the Apex Court had always been vested with 
inherent powers to regulate its own authority of judicial 
review, inasmuch as in Zafar Ali Shah’s case (PLD 2000 SC 
869) this Court has elaborately discussed the powers of 
judicial review, in the following terms:- 
“216. Judicial power means that the Superior Courts can 
strike down a law on the touchstone of the Constitution, 
as this Court did in Mehram Ali's and Sh. Liaquat 
Hussain's cases. The nature of judicial power and its 
relationship to jurisdiction are all allied concepts and 
the same cannot be taken away. The concept of judicial 
review was laid down in the United States by Chief 
Justice John Marshal in the case William Marbury v. 
James Medison (2 Law Ed. 60), ruling that it was 
Const.P.76/2007, etc. 
 
132 
inherent in the nature of judicial power that the 
Constitution is regarded as the supreme law and any 
law or act contrary to it or infringing its provisions is to 
be struck down by the Court in that the duty and 
function of the Court is to enforce the Constitution. The 
concept of judicial review did not exist in England 
because the supreme law in England was that the 
Queen-in-Parliament can do anything and that once an 
Act of Parliament has been passed, the Courts were to 
follow it. The Founding Fathers of the United States 
Constitution, however, deviated from it and in doing so 
followed the view expounded by Montesquieu in his 
treatise "Spirit of Law", which enumerates the concept 
of Separation of Powers: the judicial, the legislative and 
the executive powers. Montesquieu based his opinion 
on the practice but not the law of England, in that, in 
practice there was Separation of Powers in England but 
not in theory. Unlike the Constitution of Pakistan, the 
Constitution of United States does not confer any power 
on the Supreme Court to strike down laws but the 
Supreme Court of United States ruled so in the case of 
William Marbury v. James Medison (supra). 
217. …………………………………………………………. 
218. …………………………………………………………. 
219. While going through the case-law of Great Britain, 
we came across the view expounded by Chief Justice 
Coke, whose writings are regarded as an important 
source of Common Law, to the effect that the Bench 
should be independent of the Crown and arbiter of the 
Constitution to decide all disputed questions whereas 
Bacon took the view that the Court is under the King 
but then following the Plato's theory he (Bacon) wanted 
the King to be a philosopher. The evolution of judicial 
power is co-terminus with the evolution of civilization 
and this is so because judicial power has to check the 
arbitrary exercise of powers by any organ or authority. 
……..………………………………………………………..” 
Const.P.76/2007, etc. 
 
133 
 
Similarly in Wattan Party (PLD 2006 SC 697), the power of 
judicial review of this Court has been discussed in the 
following terms:- 
“47. 
Article 8 of the Constitution grants the power of 
judicial review of legislation according to which this 
Court is empowered to declare a law void if it is 
inconsistent with or in derogation to the fundamental 
rights. However, at the same time this Court is 
empowered to declare any legislation contrary to the 
provisions of Constitution under some of the identical 
provisions of the Constitution as under Article 143 of 
the Constitution on having noticed inconsistencies 
between the Federal and Provincial laws the Court is 
empowered to declare that which out of the two laws is 
in accordance with the Constitution. Besides it is an 
accepted principle of the Constitutional jurisprudence 
that a Constitution being a basic document is always 
treated to be higher than other statutes and whenever a 
document in the shape of law given by the Parliament 
or other competent authority is in conflict with the 
Constitution or is inconsistent then to that extent the 
same is liable to be declared un-Constitutional. This is 
not for the first time that a law like Ordinance 2000 has 
come for examination before the Court as in the past a 
number of laws were examined and when found 
against the Constitution the same were declared void 
and of no legal effect. Reference may be made to the 
case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, 
Chief Executive of Pakistan (PLD 2000 SC 869) wherein 
it was held that judicial power means that the superior 
courts can strike down a law on the touchstone of the 
Constitution. The nature of judicial power and its 
Const.P.76/2007, etc. 
 
134 
relation to jurisdiction are all allied concepts and the 
same cannot be taken away. It is inherent in the nature 
of judicial power that the Constitution is regarded as a 
supreme law and any law contrary to it or its provisions 
is to be struck down by the Court, as the duty and the 
function of the Court is to enforce the Constitution. 
Prior to the case of Zafar Ali Shah, this Court had 
examined different laws and declared that provisions of 
some of them were contrary to the provisions of the 
Constitution. Reference to the cases of Mehram Ali ibid, 
Sh. Liaquat Hussain v. Federation of Pakistan (PLD 
1999 SC 504), Khan Asfand Yar Wali v. Federation of 
Pakistan (PLD 2001 SC 607), etc is pertinent. Keeping in 
view the principles defining the powers of judicial 
review of this Court to examine a law at the touchstone 
of the Constitution, we have considered the arguments 
put forward by learned counsel for the petitioner and 
have also minutely gone through the provisions/ 
sections of the Ordinance 2000 referred to by the 
learned counsel in his arguments to ascertain as to 
whether any of them negates the provisions of the 
Constitution.”  
87. 
 
In exercise of judicial powers, as it has been 
discussed in above referred judgments, while examining the 
vires of a statute, the powers of this Court are limited to 
examine the legislative competence or to such other 
limitations as are in the Constitution and while declaring a 
legislative instrument as void, it is not because the judicial 
powers are superior in dignity to the legislative powers but 
because it enforces the Constitution as a paramount law or 
Const.P.76/2007, etc. 
 
135 
where the legislative instrument is in conflict with the 
Constitutional provisions so as to give effect to it or where 
the legislature fails to keep it, within its constitutional 
limitations. [Fauji Foundation   v.  Shamimur Rehman (PLD 
1983 SC 457)]. There are cases wherein this Court has 
examined the constitutional provisions challenged therein, as 
well, but while remaining within its limited sphere, as noted 
above. Reference may be made to Wukala Mahaz Barai 
Tahafaz Dastoor’s case (PLD 1998 SC 1263).  
88. 
 
Similarly, in the neighbouring country as well, 
the constitutional provisions have been challenged from time 
to time. Reference in this behalf may be made to Smt. Indira 
Nehru Gandhi’s case (AIR 1975 SC 2299). Brief facts of this 
case are that the High Court of Allahabad vide judgment 
dated 12th June, 1975 observed that the appellant (Smt. Indra 
Nehru Ghandi) held herself out as a candidate from 29th  
December, 1970 and was guilty of having committed corrupt 
practice by having obtained the assistance of Gazetted 
Officers in furtherance of her election prospects;  the High 
Court further found the appellant guilty of corrupt practice 
committed under Section 123(7) of the Representation of the 
People Act, 1951, by having obtained the assistance of 
Yashpal Kapur a Gazetted Officer for the furtherance of her 
election prospects; the appellant was held to be disqualified 
Const.P.76/2007, etc. 
 
136 
for a period of six years from the date of the order as 
provided in Section 8(a) of the 1951 Act. Subsequently, the 
matter was brought under challenge before the Supreme 
Court in appeal, during the pendency whereof the 
Constitution (Thirty-ninth Amendment) Act, 1975, was 
enacted, whereby, apart from other amendments in the 
Constitution, Article 329A was inserted in the Indian 
Constitution. Clause (4) of Article 329A, provided that no law 
made by Parliament before the commencement of the 
Constitution (Thirty-ninth Amendment) Act, 1975, in so far 
as it relates to election petitions and matters connected 
therewith, shall apply or shall be deemed ever to have 
applied to or in relation to the election of any such person as 
is referred to in Clause (1) to either House of Parliament and 
such election shall not be deemed to be void or ever to have 
become void on any ground on which such election could be 
declared to be void under any such law and notwithstanding 
any order made by any court, before such commencement, 
declaring such election to be void, such election shall 
continue to be valid in all respects and any such order and 
any finding on which such order is based shall be and shall 
be deemed always to have been void and of no effect. 
Consequently, the above noted Thirty-ninth amendment in 
the Constitution of India was also brought under challenge 
Const.P.76/2007, etc. 
 
137 
before the Supreme Court of India in above noted case. 
Validity of the legislative judgment, whereby the above 
referred amendments were made, was the moot question 
before the Supreme Court including the questions that 
whether by amending a law, action of judgment can be 
nullified and whether it is upon the constitutional authority 
to declare an order or findings to be void and of no effect or 
whether such declaration can only be made under either any 
judicial proceedings or on a proceedings before higher Court. 
The answer to this proposition has been replied in the 
following paras :- 
“189. Another aspect of part (iv) of Clause (4) relates to 
the question as to whether it is open to the constituent 
authority to declare an order and a finding of the High 
Court to be void and of no effect or whether such a 
declaration can be made only either in separate judicial 
proceedings or in proceedings before a higher court. 
190. A declaration that an order made by a court of law 
is void is normally part of the judicial function and is 
not a legislative function. Although there is in the 
Constitution of India no rigid separation of powers, by 
and large the spheres of judicial function and legislative 
function have been demarcated and it is not permissible 
for the legislature to encroach upon the judicial sphere. 
It has accordingly been held that a legislature while it is 
entitled to change with retrospective effect the law 
which formed the basis of the judicial decision, it is not 
permissible to the legislature to declare the judgment of 
Const.P.76/2007, etc. 
 
138 
the court to be void or not binding (see Shri Prithvi 
Cotton Mills Ltd. v. Broach Borough Municipality, 
(1970) 1 SCR 388 (at page 392) = (AIR 1970 SC 192),  
Janapada Sabha, Chhindwara v. The Central Provinces 
Syndicate Ltd. (1970) 3 SCR 745 (at page 751) = (AIR 
1971 SC 57), Municipal Corporation of the City of 
Ahmedabad etc.  v. New Shorock Spg. & Wvg. Co. Ltd. 
etc. (1971) 1 SCR 288 = (AIR 1970 SC 1292) and State of 
Tamil Nadu v. M.Rayappa Gounder (AIR 1971 SC 231). 
191. The position as it prevails in the United States, 
where guarantee of due process of law is in operation, is 
given on pages 318-19 of Vol. 46 of the American 
Jurisprudence 2d. as under: 
“The general rule is that the legislature may not 
destroy, annul, set aside, vacate, reverse, modify, 
or impair the final judgment of a court of 
competent jurisdiction, so as to take away private 
rights which have become vested by the 
judgment. A statute attempting to do so has been 
held unconstitutional as an attempt on the part of 
the legislature to exercise judicial power, and as a 
violation of the Constitutional guarantee of due 
process of law. The legislature is not only 
prohibited from reopening cases previously 
decided by the courts, but is also forbidden to 
affect the inherent attributes of a judgment. That 
the statute is under the guise of an act affecting 
remedies does not alter the rule. It is worthy of 
notice, however, that there are cases in which 
judgments requiring acts to be done in the future 
may validly be affected by subsequent legislation 
making illegal that which the judgment found to 
be legal, or making legal that which the judgment 
found to be illegal. 
10.- Judgment as to public right. 
 
With respect to legislative interference with a 
judgment, a distinction has been made between 
public and private rights under which distinction 
a statute may be valid even though it renders 
ineffective a judgment concerning a public right. 
Even after a public right has been established by 
Const.P.76/2007, etc. 
 
139 
the judgment of the court, it may be annulled by 
subsequent legislation. 
 
192. Question arises whether the above limitation 
imposed upon the legislature about its competence to 
declare a judgment of the court to be void would also 
operate upon the constituent authority? 
193. View has been canvassed before us that the answer 
to the above question should be in the negative. 
Although normally a declaration that the judgment of a 
court is void can be made either in separate proceedings 
or in proceedings before the higher court, there is, 
according to this view, no bar to the constituent 
authority making a declaration in the Constitutional 
law that such an order would be void especially when it 
relates to a matter of public importance like the dispute 
relating to the election of a person holding the office of 
Prime Minister. The declaration of the voidness of the 
High 
Court 
judgment 
is 
something 
which 
can 
ultimately be traced to part (i). Whether such a 
declaration should be made by the court or by the 
constituent authority is more, it is urged, a matter of the 
mechanics of making the declaration and would not 
ultimately affect the substance of the matter that the 
judgment is declared void. According to Article 31B, 
without prejudice to the generality of the provisions 
contained in Article 31A, none of the Acts and 
Regulations specified in the Ninth Schedule nor any of 
the provisions thereof shall be deemed to be void, or 
ever to have become void, on the ground that such Act, 
Regulation or provision is inconsistent with, or takes 
away or abridges any of the rights conferred by, any 
provisions of this Part, and notwithstanding any 
judgment, decree or order of any court or tribunal to the 
Const.P.76/2007, etc. 
 
140 
contrary, each of the said Acts and Regulations shall, 
subject to the power of any competent Legislature to 
repeal or amend it, continue in force. The effect of the 
above article, it is pointed out, is that even if a statute 
has been declared to be void on the ground of 
contravention of fundamental rights by a court of law, 
the moment that statute is specified by the constituent 
authority in the Ninth Schedule to the Constitution, it 
shall be deemed to have got rid of that voidness and the 
order of the court declaring that statute to be void is 
rendered to be of no effect. It is not necessary in such an 
event to make even the slightest change in the statute to 
rid it of its voidness. The stigma of voidness attaching 
to the statute because of contravention of fundamental 
rights found by the Court is deemed to be washed away 
as soon as the statute is specified by the constituent 
authority in the Ninth Schedule and the judgment of the 
Court in this respect is rendered to be inoperative and 
of no effect. In the case of Don John Douglas Liyange v. 
The Queen 1967 AC 259 the Judicial Committee struck 
down as ultra vires and void the provisions of the 
Criminal Law (Special Provisions) Act, 1962 on the 
ground 
that 
they 
involved 
the 
usurpation 
and 
infringement by the legislature of the judicial powers 
inconsistent with the written Constitution of Ceylon. 
Their Lordships, however, expressly referred on page 
287 to the fact that the impugned legislation had not 
been passed by two-thirds majority in the manner 
required for an amendment of the Constitution 
contained in Section 29(4) of the Constitution. It was 
observed: 
“There was speculation during the argument as 
to what the position would be if Parliament 
sought to procure such a result by first amending 
Const.P.76/2007, etc. 
 
141 
the Constitution by a two-thirds majority. But 
such a situation does not arise here. In so far as 
any Act passed without recourse to Section 29(4) 
of the Constitution purports to usurp or infringe 
the judicial power it is ultra vires. “ 
The above observations, it is urged, show that the 
restriction upon the legislature in encroaching upon 
judicial sphere may not necessarily hold good in the 
case of constituent authority. 
194. The above contention has been controverted by Mr. 
Shanti Bhushan and he submits that the limitation on 
the power of the legislature that it cannot declare void a 
judgment of the Court equally operates upon the 
constituent authority. It is urged that the constituent 
authority can only enact a law in general terms, even 
though it be a Constitutional law. The constituent 
authority may also, if it so deems proper change the law 
which is the basis of a decision and make such change 
with retrospective effect, but it cannot, according to the 
learned Counsel, declare void the judgment of the 
Court. Declaration of voidness of a judgment, it is 
stated, is a judicial act and cannot be taken over by the 
constituent authority. Although legislatures or the 
constituent authority can make laws including those for 
creation of courts, they cannot, according to the 
submission, exercise judicial functions by assuming the 
powers of a super court in the same way as the Courts 
cannot act as a super legislature. It is in my opinion, not 
necessary to dilate upon this aspect and express a final 
opinion upon the rival contentions, because of the view 
I am taking of part (iii) of Clause (4).” 
 
Const.P.76/2007, etc. 
 
142 
89. 
 
As far as sub-Article 4 of Article 329A, providing 
constitutional protection to the amended law is concerned, 
the Court, ultimately, held as under:- 
“690. The Parliament, by Clause (4) of Article 329-A, has 
decided a matter of which the country's Courts were 
lawfully seized. Neither more nor less. It is true, as 
contended by the learned Attorney-General and Shri 
Sen, that retrospective validation is a well known 
legislative process which has received the recognition of 
this Court in tax cases, pre-emption cases, tenancy cases 
and a variety of other matters. In fact, such validation 
was resorted to by the legislature and upheld by this 
Court in at least four election cases, the last of them 
being Kanta Kathuria v. Manak Chand Surana (1970) 2 
SCR 835 = (AIR 1970 SC 694). But in all of these cases, 
what the legislature did was to change the law 
retrospectively so as to remove the reason of 
disqualification, leaving it to the Courts to apply the 
amended law to the decision of the particular case. In 
the instant case the Parliament has withdrawn the 
application of all laws whatsoever to the disputed 
election and has taken upon itself to decide that the 
election is valid. Clause (5) commands the Supreme 
Court to dispose of the appeal and the cross-appeal in 
conformity with the provisions of Clause (4) of Article 
329-A, that is in conformity with the "judgment" 
delivered by the Parliament. The "separation of powers 
does not mean the equal balance of powers" says 
Harold Laski, but the exercise by the legislature of what 
is purely and indubitably a judicial function is 
impossible to sustain in the context even of our co-
operative 
federalism 
which 
contains 
no 
rigid 
Const.P.76/2007, etc. 
 
143 
distribution of powers but which provides a system of 
salutary checks and balances.  
90. 
 
Likewise, recently the Constitutional Court of 
Italy examined the constitutionality of Article 1 of law No. 
124 of 23rd July 2008 [the provision ordering the suspension 
of criminal proceedings against the high offices of state]. 
Brief facts of the said case are that the above said law was 
promulgated in Italy to provide protection to some of the 
politicians including the Silvio Berlusconi, the President of 
the Council of Ministers. Article 1(1) of the said law provided 
that “without prejudice to the cases governed by Articles 90 and 96 
of the Constitution, any criminal proceedings against individuals 
which occupy the offices of President of the Republic, President of 
the Senate of the Republic, President of the Chamber of Deputies 
and President of the Council of Ministers, shall be suspended from 
the time when the office or function is taken up until the end of the 
term in office; the suspension shall also apply to criminal 
proceedings for conduct prior to taking up the office or function”. 
Whereas Sub-Section 7 of the said Article provided that “the 
provisions of the Article shall also apply to criminal proceedings in 
progress, at every stage, state or instance, at the time when the 
present law enters into force”. During the course of criminal 
proceedings, the Tribunale di Milano, by referral order of 26th  
September, 2008 (referral order No. 397 of 2008), raised the 
Const.P.76/2007, etc. 
 
144 
question with regard to the constitutionality of Article 1(1) 
and (7) of law No. 124 of 23rd July 2008, with reference to 
Articles 3, 136 and 138 of the Constitution. However, 
ultimately the matter came up before the Constitutional 
Court of Italy, when the Court concluded that the procedural 
suspension provided for, under the contested provision, is 
aimed essentially at protecting the functions of the members 
and Presidents of certain constitutional organs and, at the 
same time, creates a clear difference in treatment before the 
courts. Therefore, it was held that both of the prerequisites 
for constitutional privileges are satisfied, which means that, 
that matter is not susceptible to regulation through ordinary 
legislation. It was further held that in particular, the 
contested legislation confers on the holders of four high 
institutional offices an exceptional and innovative protected 
status, which cannot be inferred from the constitutional 
provisions on privileges and which therefore is not covered 
under constitutional law, therefore, it does not constitute a 
source of law of an appropriate level to make provision over 
this matter. Thus the Court, eventually, declared that Article 
1 of law No. 124 of 2008 is unconstitutional due to violation 
of the combined provisions of Articles 3 and 138 of the 
Constitution, in relation to the arrangements governing 
Const.P.76/2007, etc. 
 
145 
privileges contained in Articles 68, 90 and 96 of the 
Constitution. 
 
91. 
 
Thus, in view of above discussion, it is held that 
amendment in Section 31A of the NAO, 1999 by inserting 
clause (aa) in it, by means of Section 6 of the NRO, 2007 is 
unconstitutional and void ab initio. 
92. 
 
Section 7 of the NRO, 2007 further added Section 
33F in the NAO, 1999, by means of which, following 
categories of the persons have benefitted: 
i) 
The persons, against whom investigation is 
pending but no trial has commenced; the 
investigation has come to an end.   
ii) 
The persons, against whom the trial is pending 
but no conviction/ acquittal has been recorded; 
the trial comes to an immediate end.     
iii) 
The persons, who have been convicted but have 
merely filed an appeal or some proceedings, 
against that conviction before the High Court or 
the Supreme Court and whether or not such 
conviction/sentence has been suspended, before 
the promulgation of the NRO, 2007; everything 
stands terminated and withdrawn.  
iv) 
The persons, who have been acquitted and 
against their acquittal an appeal is pending; they 
also stand absolved.  
Const.P.76/2007, etc. 
 
146 
v) 
The persons, against whom, request for mutual 
legal assistance and civil party to proceedings, 
have been initiated by the Federal Government; 
that stand withdrawn or terminated.  
vi) 
‘holders of public office’, whose cases have been 
withdrawn or terminated, shall also not be liable 
to any action in future, as well, under the NRO, 
2007, for acts having been done in good faith 
before the cut off date.    
93. 
 
It may be noted that Section 33E of the NAO, 
1999 provides that any fine or other sum due, or as 
determined to be due by a Court, shall be recoverable as 
arrears of land revenue. Apparently, Section 33F of the NAO, 
1999, inserted through Section 7 of the NRO, 2007 has 
provided a mechanism for withdrawal and termination of 
prolonged pending proceedings, initiated prior to 12th 
October, 1999. For ready reference, Section 7 of the NRO, 
2007 is reproduced hereinbelow:- 
“7. Insertion of new section, Ordinance, XVIII of 1999. 
In the said Ordinance, after section 33E, the following 
new section shall be inserted, namely:  
“33F. Withdrawal and termination of prolonged 
pending proceedings initiated prior to 12th 
October, 1999. 
(1) Notwithstanding anything contained in this 
Ordinance or any other law for the time being in 
force, 
proceedings 
under 
investigation 
or 
pending in any court including a High Court and 
the Supreme Court of Pakistan initiated by or on 
a reference by the National Accountability Bureau 
Const.P.76/2007, etc. 
 
147 
inside or outside Pakistan, including proceedings 
continued under section 33, requests for mutual 
assistance and civil party to proceedings initiated 
by the Federal Government before the 12th day of 
October, 1999 against holders of public office 
stand withdrawn and terminated with immediate 
effect and such holders of public office shall also 
not be liable to any action in future as well under 
this Ordinance for acts having been done in good 
faith before the said date; 
Provided that those proceedings shall not be 
withdrawn and terminated which relate to cases 
registered in connection with the cooperative 
societies and other financial and investment 
companies or in which no appeal, revision or 
constitutional petition has been filed against final 
judgment and order of the Court or in which an 
appellate or revisional order or an order in 
constitutional petition has become final or in 
which voluntary return or plea bargain has been 
accepted 
by 
the 
Chairman, 
National 
Accountability Bureau under section 25 or 
recommendations of the Conciliation Committee 
have been accepted by the Governor, State bank 
of Pakistan under section 25A. 
(2) No action or claim by way of suit, prosecution, 
complaint or other civil or criminal proceeding 
shall lie against the Federal, Provincial or Local 
Government, the National Accountability Bureau 
or any of their officers and functionaries for any 
act or thing done or intended to be done in good 
faith pursuant to the withdrawal and termination 
of cases under sub-section (1) unless they have 
deliberately misused authority in violation of 
law.”    
  
 
The above provision seems to be open ended, as on account 
of non obstante clause, it directs that notwithstanding 
anything contained in this Ordinance or any other law for the 
time being in force, proceedings under investigation or 
pending in any Court, including a High Court and the 
Supreme Court of Pakistan, initiated by or on a reference by 
Const.P.76/2007, etc. 
 
148 
the National Accountability Bureau, inside or outside 
Pakistan, including proceedings continued under Section 33, 
requests for mutual assistance and civil party to proceedings, 
initiated by the Federal Government, before the 12th October, 
1999, against holders of public offices, stand withdrawn 
and terminated with immediate effect and such ‘holders of 
public office’ shall also not be liable to any action in future, as 
well, under this Ordinance, for acts having been done in 
good faith, before the said date. This is for the first time that 
in the newly inserted Section 33F of the NAO, 1999 by means 
of Section 7 of the NRO, 2007, the connotation ‘holders of 
public office’ has been used. The definition of the ‘holders of 
public office’ has been provided in Section 5(m) of the NAO, 
1999, which reads as follows:- 
5(m). "Holder of Public Office" means a person who :-  
 
(i) has been the President of Pakistan or the Governor 
of a Province.  
 
(ii) is, or has been the Prime Minister, Chairman 
Senate, Speaker of the National Assembly, Deputy 
Speaker National Assembly, Federal Minister, 
Minister of State, Attorney General and other Law 
Officer appointed under the Central Law Officers 
Ordinance, 1970 (VII of 1970), Advisor to the 
Prime Minister, Special Assistant to the Prime 
Minister, 
Federal 
Parliamentary 
Secretary, 
Member of Parliament, Auditor General, Political 
Secretary, Consultant to the Prime Minister and 
holds or has held a post or office with the rank or 
status of a Federal Minister or Minister of State;  
 
(iii) is, or has been, the Chief Minister, Speaker 
Const.P.76/2007, etc. 
 
149 
Provincial Assembly, Deputy Speaker Provincial 
Assembly, Provincial Minister, Advisor to the 
Chief Minister, Special Assistant to the Chief 
Minister, 
Provincial 
Parliamentary 
Secretary, 
Member of the Provincial Assembly, Advocate 
General including Additional Advocate General 
and 
Assistant 
Advocate 
General, 
Political 
Secretary, Consultant to the Chief Minister and 
who holds or has held a post or office with the 
rank or status of a Provincial Minister;  
 
(iv) is holding, or has held, an office or post in the 
service of Pakistan, or any service in connection 
with the affairs of the Federation, or of a Province, 
or of a local council constituted under any Federal 
or Provincial law relating to the constitution of 
local councils, cooperative societies or in the 
management of corporations, banks, financial 
institutions, firms, concerns, undertakings or any 
other institution or organization established, 
controlled or administered by or under the 
Federal Government or a Provincial Government, 
other than a person who is a member of any of the 
armed forces of Pakistan, except a person who is, 
or has been a member of the said forces and is 
holding, or has held, a post or office in any public 
corporation, 
bank, 
financial 
institution, 
undertaking or other organization established, 
controlled or administered by or under the 
Federal Government or a Provincial Government 
or, notwithstanding any thing contained in the 
Pakistan Army Act, 1952 (XXXIX of 1952), or any 
other law for the time being in force, a person who 
is a civilian employee of the armed forces of 
Pakistan;  
 
 
(v) has been, the Chairman or Vice Chairman of a zila 
council, a municipal committee, a municipal 
corporation 
or 
a 
metropolitan 
corporation 
constituted under any Federal or Provincial law 
relating to local councils; and   
“Explanation”- For the purpose of this sub-clause 
the expressions "Chairman" and "Vice Chairman" 
shall include "Mayor" and "Deputy Mayor" as the 
case may be, and the respective councilors therein.  
 
(va) is or has been a District Nazim  or Naib Nazim, 
Tehsil Nazim or Naib Nazim or Union Nazim or 
Const.P.76/2007, etc. 
 
150 
Naib Nazim;  
 
(vi) has served in and retired or resigned from or has 
been discharged or dismissed from the Armed 
Forces of Pakistan.”  
 
 
94. 
 
It may be noted that NAO, 1999 was promulgated 
on 16th November, 1999, after military takeover in the 
country, on 12th October, 1999. Although in its application the 
NAO, 1999 during the regime of General Pervez Musharraf 
has been the subject of debate, pro and con, it has not been 
amended by any succeeding Parliament. In fact, the 
promulgation of the NAO, 1999 was claimed to have been 
expedient and necessary to provide for effective measures for 
the detection, investigation, prosecution and speedy disposal 
of cases, involving corruption, corrupt practices, misuse or 
abuse of power or authority, misappropriation of property, 
taking of kickbacks, commissions and for matters connected 
and ancillary or incidental thereto. [The underlined words 
have been added in the preamble vide Ordinance 
No.CXXXIII of 2002 dated 23rd November 2002]. Similarly, an 
emergent need was also found for the recovery of 
outstanding amounts from the persons, who have committed 
default in the repayment of amounts to Banks, Financial 
Institutions, Government agencies and other agencies. 
Likewise, it was also felt that there was a grave and urgent 
Const.P.76/2007, etc. 
 
151 
need for the recovery of State money and other assets from 
those persons who have misappropriated or removed such 
money or assets through corruption, corrupt practices and 
misuse of power or authority. Yet there was another 
important aspect of the preamble, which was inserted vide 
Ordinance No. XXXV of 2001 dated 10th August 2001 which 
speaks that there is an increased international awareness that 
nations should co-operate in combating corruption and seek, 
obtain or give mutual legal assistance in matters concerning 
corruption and for matters connected, ancillary or incidental 
thereto. 
95. 
 
It may be noted that the word ‘corruption’ has 
been defined by this Court in Syed Zafar Ali Shah’s case 
(PLD 2000 SC 869), in the following terms:- 
“233. ‘Corruption’ is generally defined as the abuse of 
public office for private gain. In view of the fact that 
scope of corruption has widened, this definition would 
include the abuse of all offices of trust. It has diverse 
meanings 
and 
far-reaching 
effects 
on 
society, 
government and the people. Of late, the culture of 
corruption and bribe has embedded in our society to the 
extent that even routine works which should be done 
without any approach or influence are commonly 
known to be done only on some such consideration. 
This bribe culture has plagued the society to the extent 
that it has become a way of life. In Anatulay VIII (1988) 
2 SCC 602 where Abdul Rahman Anatulay, Chief 
Const.P.76/2007, etc. 
 
152 
Minister of Maharashtra was prosecuted for, corruption 
Sabyasachi Mukharji, J. lamented as follows-.- 
“Values in public life and perspective of values in 
public life, have undergone serious changes and 
erosion during the last few decades. What was 
unheard before is common place today. A new 
value orientation is being undergone in our life 
and culture. We are at the threshold of the 
cross-roads of values. It is for the sovereign 
people of this country to settle these conflicts yet 
the Courts have a vital role to play in these 
matters.” 
  
234. 
…………………………………… When corruption 
permeates 
in 
the 
social, 
political 
and 
financial 
transactions to such an extent that even proper and 
honest orders and transactions are suspected to the 
point of belief being a result of corruption, one is 
compelled to infer all is not well and corruption has 
gone deep in the roots. No doubt, this is an age of 
"corruption eruption", but during the last few years 
there have been large scale prosecutions of former 
world leaders in various countries on the charges of 
corruption and corrupt practices, in some cases leading 
to convictions, which phenomenon must not be taken 
lightly and the issue must be addressed adequately and 
effectively 
through 
transparent 
institutionalized 
processes.” 
 
96. 
 
One of the learned counsel appearing for the 
petitioners argued that the NRO, 2007 is the result of abuse of 
public office for private gain, therefore, it is like a virus 
which has infected the body of politics. According to him 
corruption vitiates like fraud, which vitiates all transactions, 
therefore, the NRO, 2007 stands vitiated by the effect of 
Const.P.76/2007, etc. 
 
153 
abuse of public office for private gain. He further added that 
the NRO, 2007 is a document which is non est; it is like a still 
born, which dies in mother’s wombs. 
97. 
 
Thus the theme of the NAO, 1999, as it is evident 
from its preamble and substantive part, is to deal with the 
cases of corruption and corrupt practices, strictly to achieve 
the object spelt out in preamble. The expression “corruption 
and corrupt practices” has been defined in Section 9 of the 
NAO, 1999, as under:- 
9. Corruption and Corrupt Practices 
 
(a) A holder of a public office, or any other person, is 
said to commit or to have committed the offence of 
corruption and corrupt practices:-  
 
(i) 
if he accepts or obtains from any person or 
offers any gratification directly or indirectly, 
other than legal remuneration, as a motive or 
reward such as is specified in section 161 of 
the Pakistan Penal Code (Act XLV of 1860) for 
doing or for-bearing to do any official act, or 
for showing or for-bearing to show, in the 
exercise of his official functions, favour or 
disfavour to any person, or for rendering or 
attempting to render any service or disservice 
to any person; or  
 
(ii) 
If he accepts or obtains or offers any valuable 
thing 
without 
consideration, 
or 
for 
a 
consideration 
which 
he 
knows 
to 
be 
inadequate, from any person whom he knows 
to have been, or likely to be, concerned in any 
proceeding or business transacted or about to 
be transacted by him, or having any 
connection with his official functions or from 
any person whom he knows to be interested 
in or related to the person so concerned; or  
 
Const.P.76/2007, etc. 
 
154 
(iii) If 
he 
dishonestly 
or 
fraudulently 
misappropriates or otherwise converts for his 
own use, or for the use of any other person, 
any property entrusted to him, or under his 
control, or willfully allows any other person 
so to do; or  
 
(iv) If he by corrupt, dishonest, or illegal means, 
obtains or seeks to obtain for himself, or for 
his spouse and/or dependents or any other 
person, any property, valuable thing, or 
pecuniary advantage; or  
 
(v) 
If he or any of his dependents or benamidars 
owns, possesses, or has acquired right or title 
in any assets or holds irrevocable power of 
attorney in respect of any assets or pecuniary 
resources disproportionate to his known 
sources 
of 
income, 
which 
he 
cannot 
reasonably account for, or maintains a 
standard of living beyond that which is 
commensurate with his source of income; or  
 
(vi) If he misuses his authority so as to gain any 
benefit or favour for himself or any other 
person, or render or attempts to render or 
willfully fails to exercise his authority to 
prevent the grant, or rendition of any undue 
benefit or favour which he could have 
prevented by exercising his authority;  
 
(vii) If he has issued any directive, policy, or any 
SRO (Statutory Regulatory Order) or any 
other order which grants or attempts to grant 
any undue concession or benefit in any 
taxation matter or law or otherwise so as to 
benefit himself or any relative or associate or 
a benamidar or any other person; or  
 
(viii) if he commits an offence of willful default; or 
 
(ix) if he commits the offence of cheating as 
defined in section 415 of the Pakistan Penal 
Code, 1860 (Act XLV of 1860), and thereby 
dishonestly induces members of the public at 
large to deliver any property including 
money or valuable security to any person; or 
 
Const.P.76/2007, etc. 
 
155 
(x) 
if he commits the offence of criminal breach 
of trust as defined in section 405 of the 
Pakistan Penal Code, 1860 (Act XLV of 1860) 
with regard to any property including money 
or valuable security entrusted to him by 
members of the public at large; 
 
(xi) if he, in his capacity as a banker, merchant, 
factor, broker, attorney or agent, commits 
criminal breach of trust as provided in section 
409 of the Pakistan Penal Code, 1860 (Act 
XLV of 1860) in respect of property entrusted 
to him or over which he has dominion; 
 
(xii) if he aids, assists, abets, attempts or acts in 
conspiracy with a person or a holder of public 
office accused of an offence as provided in 
clauses (i) to (xi).]; and 
 
  
(b) All offences under this Order shall be non-bailable 
and, 
notwithstanding 
anything 
contained 
in 
sections 426, 491, 497, 498 and 561A or any other 
provision of the Code, or any other law for the time 
being in force no Court shall have jurisdiction to 
grant bail to any person accused of any offence 
under this Order. 
 
(c) If after completing the investigation of an offence 
against a holder of public office or any other person, 
the Chairman NAB is satisfied that no prima facie 
case is made out against him and the case may be 
closed, the Chairman NAB shall refer the matter to 
a Court for approval and for the release of the 
accused, if in custody.] 
 
 
98. 
 
This Court in the case of Khan Asfandyar Wali   
v.  Federation of Pakistan (PLD 2001 SC 607), has spelt out a 
mechanism for the NAB and the Courts thereunder, as 
under:- 
“266. A perusal of the Preamble of the NAB Ordinance 
shows that it is a composite and an extensive law and 
its interpretation has to be done in a manner different 
Const.P.76/2007, etc. 
 
156 
from the normal interpretation placed on purely 
criminal statutes. This law deals with, among others, 
setting up of the National Accountability Bureau, which 
is an executive as well as administrative authority and 
an investigating agency; which deals with several 
aspects of ‘corruption’ etc. The NAB does not merely 
deal with crimes of corruption, it also deals with their 
investigation and settlement out of Court. Bargain out 
of Court is now an established method by which things 
are settled in several developed societies. It was 
necessary in cases where the criminal is a potential 
investor and is inter-linked with the economy of the 
society after he has cleared his liability. There appears 
to be nothing amiss insofar as it does not oust the 
jurisdiction of the Accountability Courts to exercise 
their judicial power in appropriate proceedings. Rather 
this is in the nature of a facility provided to the accused. 
There is nothing wrong with the NAB Ordinance 
providing for a procedure of bargaining. 
267. Moreover, 
the 
scheme 
for 
exploring 
the 
possibility of settlement during investigation/inquiry 
stage by the Chairman NAB cannot be ignored straight 
away. At the outset, most of the lawyers tend to 
consider the question of settlement out of court. There is 
need to focus attention on this significant fact of the 
matter. The rationale behind the Ordinance is not only 
to punish those who were found guilty of the charges 
leveled under the Ordinance but also to facilitate early 
recovery of the ill-gotten wealth through settlement 
where 
practicable. 
The 
traditional 
compromise, 
settlement, compoundability of offence during the 
course of proceedings by the Courts after protracted 
litigation is wasteful. Viewed in this perspective, a 
Const.P.76/2007, etc. 
 
157 
power has been vested in the Chairman NAB to 
facilitate early settlement for recovery of dues through 
‘plea bargaining’ where practicable. Lawyers are often 
interested in settling the disputes of their clients on just, 
fair and equitable basis. There are different approaches 
to settlement. Plea bargaining is not desirable in cases 
opposed to the principles of public policy. Chairman 
NAB/Governor, State Bank of Pakistan, while involved 
in plea bargaining negotiations, should avoid using 
their position and authority for exerting influence and 
undue pressure on parties to arrive at settlement. 
However, in the interest of revival of economy and 
recovery of outstanding dues, any type of alternate 
resolution like the ‘plea bargaining’ envisaged under 
section 25 of the Ordinance should be encouraged. An 
accused can be persuaded without pressure or threat to 
agree on a settlement figure subject to the provisions of 
the Ordinance. Establishing this procedure at the 
investigation/inquiry 
stage 
greatly 
reduces 
determination of such disputes by the Court. However, 
as the plea bargaining/ compromise is in the nature of 
compounding the offences, the same should be subject 
to approval of the Accountability Court. Accordingly, 
section 25 of the impugned Ordinance be suitably 
amended.” 
99. 
 
The provisions of the NAO, 1999 as well as their 
interpretation, as noted in the preceding paras, provide high 
moral authority to the functionaries, to discharge their duties 
for curbing corruption and corrupt practices, to achieve the 
object namely, conviction and effecting the recovery of 
national wealth, even before the trial, keeping in view the 
Const.P.76/2007, etc. 
 
158 
solid mechanism provided under Section 25 of the NAO. As 
far as its provisions, embedded in Section 21, are concerned, 
it lays down procedure for international cooperation and 
request for mutual legal assistance. It reads as follows:- 
21. International Cooperation - Request for mutual legal 
assistance: 
The Chairman NAB or any officer authorized by the 
Federal Government may request a Foreign State to do 
any or all of the following acts in accordance with the 
law of such State:-  
 
(a) have evidence taken, or documents or other articles 
produced; 
(b) obtain and execute search warrants or other lawful 
instruments authorizing search for things relevant 
to investigation or proceedings in Pakistan believed 
to be located in that State, and if found, seize them; 
 
(c) freeze assets, by whatever processes are lawfully 
available in that State, to the extent to which the 
assets are believed on reasonable grounds to be 
situated in that State; 
  
(d) confiscate articles and forfeit assets to the extent to 
which the articles or assets, as the case may be, are 
believed to be located in that State; 
  
(e) transfer to Pakistan any such evidence, documents, 
things, articles, assets or proceeds realized from the 
disposal of such articles or assets;  
  
(f) transfer in custody to Pakistan a person detained in 
that State who consents to assist Pakistan in the 
relevant investigation or proceedings; 
 
 
(g) Notwithstanding anything contained in the Qanun-
e-Shahadat Order 1984 (P.O.10 of 1984) or any other 
law for the time being in force all evidence, 
documents or any other material transferred to 
Pakistan by a Foreign Government shall be 
receivable as evidence in legal proceedings under 
this Ordinance; and 
 
 
Const.P.76/2007, etc. 
 
159 
(h) 
 
notwithstanding anything to the contrary contained 
hereinabove, the Chairman NAB may, on such 
terms and conditions as he deems fit, employ any 
person or organization, whether in Pakistan or 
abroad, for detecting, tracing or identifying assets 
acquired by an accused in connection with an office 
under this Ordinance, and secreted or hoarded 
abroad, or for recovery of and repatriation to 
Pakistan of such assets.”   
 
 
 A perusal of above Section indicates that on account of 
international cooperation, request for mutual legal assistance 
means, the NAB or any officer, authorized by the Federal 
Government, has been empowered to make a request to a 
Foreign State to do any or all things mentioned therein; to 
freeze assets by whatever processes are lawfully available in 
that State, to the extent to which the assets are believed, on 
reasonable grounds, to be situated in that State; and to 
transfer to Pakistan any such evidence, documents, things, 
articles, assets or proceeds, realized from the disposal of such 
articles or assets. As far as, confiscation or realization of the 
national wealth, situated within the country, is concerned, 
there is no difficulty for the NAB to deal with it, in 
accordance with the procedure provided under the NAO, 
1999. However, for achieving the object to save the assets 
outside the country, allegedly belonging to the nation, a 
mechanism has been provided on the basis of international 
cooperation.  
Const.P.76/2007, etc. 
 
160 
100.  
It is to be noted that while making request to the 
Foreign States for mutual legal assistance, no request for 
criminal proceedings in such a State can be demanded. 
However, 
Courts 
of 
the 
said 
States 
may 
proceed 
independently for an action, which falls within the definition 
of their municipal laws, governing criminal actions. Pakistan 
is not the only country, which has demanded for such 
mutual legal assistance; there are so many other countries, on 
whose demand, subject to determination, the wealth of the 
nation was reverted back to those States. In this behalf 
reference may be made to the case of Ferdinand Emmanuel 
Edralin Marcos, President of the Philippines. Detailed 
marshaling of the facts of said case would not serve any 
purpose, however, the crux of the matter in the form of brief 
summery is as under:- 
Marcos was elected as President of Philippines in 
November 1965 and re-elected in 1969. On 21st 
September 1972 he declared Marshal Law in the 
country which was lifted on 7th January 1981. He was 
re-elected as President in 1981 and remained on this 
position till February 1986, when he was removed 
through a popular revolt in 1986.  
In 1986, on the basis of documents lost by him in the 
Presidential palace, assets worth US$ 356 millions 
were discovered in his name in Swiss Banks. The said 
assets were freezed on the request filed through Swiss 
Lawyers in February 1986.  
On 28th February 1986 the Philippine Presidential 
Commission on Good Government (PCGG) formed 
Const.P.76/2007, etc. 
 
161 
under the Presidential Order No.1 of 1986 to recover 
Marcos-linked assets in the Philippines and abroad.  
On 24th March 1986 the Swiss Federal Council imposed 
an unprecedented unilateral and exceptional freeze 
order on Marcos assets, after it was informed by a 
Swiss Bank that De Guzman, a Filipino Banker, with 
power of attorney from Marcos and his wife, had 
requested for the transfer of assets to an Australian 
Bank belonging to him, in anticipation of the 
Philippine Governmental claim. This was done 
without any mutual legal assistance treaty on criminal 
matters between Switzerland and Philippines, just on 
the basis of the Swiss Federal Act on International 
Mutual Assistance in criminal matters (Act on 
International Criminal Assistance, IMAC).  
On 18th April 1986 the Philippines Government made 
informal request for continuation of freeze order but 
the freezing order was rescinded on 23rd April 1986, 
however, the assets were re-freezed on 20th July 1986, 
after a formal request, made by the Philippines 
Government 
through 
a 
diplomatic 
note, 
for 
continuation of freeze order.  
In 1989 the Government of Philippines brought Court 
cases in the US District Courts, California and Hawaii, 
however, these cases were dropped when the Marcos 
family agreed to transfer certain assets held in US, to 
the Philippine government.  
On 20th December 1990, Swiss Federal Court (Supreme 
Court) accepted that, in principle, the frozen assets 
should be returned to the Philippines and also ordered 
for transmission of Banking documents pertaining to 
Marcos’s deposits to Philippines government, subject 
to some conditions.  
On 17th December 1991 the PCGG filed civil case in the 
Filipino Court of Sadiganbayan seeking recovery of 
Marcos properties and assets just four days prior to the 
deadline of 21st December 1991.  
On 28th December 1993 the government of Philippines 
entered into 75/25(%) sharing agreement with Marcos 
family through PCGG which was declared invalid by 
the Philippines Supreme Court on 9th December 1998.  
Const.P.76/2007, etc. 
 
162 
On 10th December 1997, the Swiss Federal Court 
(Supreme Court) took decisive steps by issuing 
decision to transfer US$ 540 million (increased to US$ 
658 million with interest) of Marcos, to the custody of 
Sadiganbayan, under the IMAC. The revised law made 
it, in principle, essential for the country to which the 
funds are to be restituted, to prove the illegal origin 
and the legal ownership of the funds through a legally 
binding 
judgment. 
However, 
the 
Republic 
of 
Philippines guaranteed that the decision about the 
seizure or restitution of the assets to the entitled 
parties would be taken in judicial proceedings, to 
satisfy the requirement of Article 14 of the 
International Covenant on Civil and Political Rights 
1966 (ICCPR). 
In September 2000 Filipino Anti-Corruption Court 
Sadiganbayan’s first division, made, prima facie, 
decision that the entire US$ 627 million of Marcos 
funds, repatriated from Switzerland, were to be 
considered the property of Philippines.  
On 15th July 2003, Philippines Supreme Court ruled 
that the funds transferred from Switzerland are ill-
gotten and must, therefore, be handed over to the 
Philippine Government, confirming Swiss Federal 
Court’s decision concerning the illegitimate origin of 
the funds. The money was to be used for buying the 
land for its distribution to poor farmers. 
On 5th August 2003 Swiss and Filipino authorities 
expressed their satisfaction on the said decision and 
opined that the funds transferred from Switzerland to 
PNB escrow account, can now be transferred into the 
care of the government of Philippines, which was 
ultimately remitted to the Philippine treasury on 4th 
February 2004. 
Afterwards the Federal Supreme Court of Switzerland 
vide partial decision dated 18th August 2006, freezed 
the assets of GEI Inc (owned by Marcos/associates) 
and set a deadline of 31st December 2006 for filing or 
decision of the Court of first instance about the seizer 
of said assets, which was provided on 28th December 
2006. The beneficiaries/associates of Marcos filed 
appeals which were dismissed vide order dated 1st 
June 2007.  
 
Const.P.76/2007, etc. 
 
163 
It may be noted that on account of above proceedings  
against Marcos, the money/funds belonging to Philippine 
Government were returned by the Swiss Courts.  
101.  
Similarly, there is another case, from Nigerian 
jurisdiction, wherein the Head of the State namely Sani 
Abacha, was found involved in corruption and corrupt 
practices and proceedings, against him, were initiated for 
return of his assets from Switzerland to Nigeria and from 
1999 to 2009, approximately US$ 1.2 billion, had been 
returned to the Federal Republic of Nigeria. Brief history of 
this case is also narrated hereinbelow for reference:- 
Sani Abacha began his career as second lieutenant 
in the Nigerian Army in 1963, rose through the 
ranks to the Armed Forces Ruling Council (AFRC) 
and eventually became head of State. He died on 8th 
June 1998 suddenly of a heart attack. He was listed 
as the world's fourth most corrupt leader in recent 
history by Transparency International in 2004. 
 
General 
Abdulsalami 
Abubakar's 
interim 
government had delivered a clear message that 
Abacha had looted huge sums, and it had to be 
restored. Members of the Abacha family and some 
of 
their 
accomplice 
'voluntarily' 
returned 
approximately US$ 1 billion to the Federal 
Government of Nigeria, during that tenure. 
 
Obasanjo's government has implicated the deceased 
General Abacha and his family in wholesale looting 
of Nigeria's coffers. According to post-Abacha 
government sources, some US$ 3 billion in the 
shape of foreign assets have been traced, in the 
name 
of 
Abacha, 
his 
family 
members, 
representatives and accomplices. 
 
Const.P.76/2007, etc. 
 
164 
In 1999 Nigeria transmitted a request for judicial 
assistance to Switzerland against Sani Abacha and 
fourteen other persons, for blocking of their assets, 
channeled into Switzerland and also disclosing the 
relevant banking documents. The FOG blocked 
amount of US$ 83 million in the banks of Geneva 
and Zurich.  
 
In October 1999 Geneva’s judiciary initiated various 
proceedings against family members and business 
friends of Abacha including Mohammed Abacha 
and Atiku Bagudu, on suspicion of money 
laundering, fraud and taking part in a criminal 
organisation. In furtherance whereof the accounts 
already 
blocked 
in 
the 
judicial 
assistance 
proceedings as well as other accounts, traced during 
the criminal investigation, were blocked. In the 
course of the proceedings, an amount of US$ 70 
million  was transferred to the bank of International 
Settlement, in the year 2000. 
 
In February 2005, the Swiss Federal Court rejected 
the appeal filed by the Abachas against the 
repatriation of the most of the funds frozen in 
Switzerland, totaling about US$ 468 million, 
approximately, however, US$ 40 million, the 
remaining frozen until the Abachas were given the 
opportunity to attempt to demonstrate that they 
were not of criminal origin. 
 
An additional US$ 700 million were 'voluntarily' 
returned or forfeited in the context of criminal 
proceedings initiated in Switzerland, Jersey and 
Liechtenstein. 
 
From September 1999 to date, approximately US$ 
1.2 billion have been repatriated to the Federal 
Republic of Nigeria (including from Switzerland, 
Luxembourg, Jersey, Liechtenstein, Belgium and the 
UK). 
 
102.  
Apart from above two cases, there is yet another 
case from UK jurisdiction i.e. High Court of Justice, Queen’s 
Bench Division, in Re: The Queen on the Application of 
Const.P.76/2007, etc. 
 
165 
Corner House Research and Campaign Against Arms Trade 
vs. The Director of The Serious Fraud Office and BAE 
Systems PLC [(2008) EWHC 714]. The brief summary of the 
facts is as under:- 
 
The BAE Systems was under a contract with Saudi 
Arabia for the purchase of Al-Yamamah aircrafts. In 
relation to this contract, several allegations of 
bribery had been made against the BAE. The 
Serious Fraud Office (SFO) had been appointed to 
investigate into the matter. In the course of this 
investigation the BAE was asked to disclose the 
details of payments to agents and the consultants 
with respect to the contract of the aircrafts.  
 
 
In response to this, the solicitors for BAE wrote back 
to SFO saying that the investigations should be 
halted; as the continuing investigations would 
seriously affect the diplomatic relations between the 
U.K and Saudi Arabia and also that the safety of the 
British Citizens would be affected. Further, also that 
the investigations would prevent UK from clinching 
the largest export contract of Al-Yamamah aircrafts. 
This however, did not stop the investigations from 
continuing. 
 
 
In July 2006, the SFO was about to access the Swiss 
Bank accounts of BAE. This caused a stir and made 
the Prince Bandar of Arabia to convey to the then 
Prime Minister of UK, that if the SFO did not stop 
looking at the Swiss Bank accounts of BAE, and also 
cease other investigation, then the contract for the 
aircrafts would be called off and both intelligence 
and diplomatic relations between the two countries 
would be seriously ceased. 
 
 
This made the government to rethink its policy, and 
it was agreed among the Prime Minister and other 
ministers that if the investigation into this 
continued then the relations between the two 
countries would be affected and a severe blow 
would also be dealt on UK’s foreign policy 
objectives in the Middle East. Further, there would 
be a threat to the internal security of the country. 
Const.P.76/2007, etc. 
 
166 
 
 
In light of the above developments on 14 December 
2006 
the 
Director 
of 
SFO 
terminated 
all 
investigation proceedings as it was felt that the 
continued investigation posed a serious threat to 
the country’s National and International security 
and would also affect the lives of their citizens. It 
was in this light that an NGO called Corner House 
Research, applied for a judicial review of the 
decision to terminate the investigation process.  
 
The Court, apart from other findings, made the following 
observations:- 
The principle of separation of powers cannot be 
applied in the cases of executive’s decisions 
affecting foreign policy. The courts can take notice 
of those cases where the threat involved is not 
simply 
against 
the 
country’s 
commercial, 
diplomatic and security interest but also against its 
legal system. 
 
It is the responsibility of the court to provide 
protection. Threats to the administration of public 
justice within a country are the concern primarily of 
the courts, not the executive. 
 
The rule of law requires that the Director should act 
in a manner consistent, the well recognized 
standards, which the courts impose by way of 
judicial review. At the heart of the obligations of the 
courts and of the judges lies the duty to protect the 
rule of law 
 
The Rule of law is nothing if it fails to constrain 
overweening power. 
 
The courts fulfill their obligation to protect the rule 
of law by ensuring that a decision maker on whom 
statutory powers are conferred , exercises those 
powers independently and without surrendering 
them to a third party. 
 
The executive, Director and the attorney should not 
make any decision in submission to the threats. The 
courts cannot exercise jurisdiction on the foreign 
Const.P.76/2007, etc. 
 
167 
state, however, the legal relationships of the 
different branches of the government and the 
separation of power depends upon internal 
constitutional arrangements. They are of no concern 
to foreign states. 
 
A resolute refusal to any foreign threat is the only 
way to protect national interest. While exercising 
statutory power an independent prosecutor is not 
entitled to surrender to the threat of a third party or 
the foreign state. 
 
The discontinuation of the investigation has in fact 
caused actual damage to the national security, the 
integrity of criminal justice system and the rule of 
law. 
 
The Director has acted on erroneous interpretation 
of Art 5 of OECD and both the Director and the 
government have failed to recognize that the rule of 
law required the decision to discontinue to be 
reached as an exercise of independent judgment, in 
pursuance of power conferred by statute. To 
preserve the integrity and independence of that 
judgment demanded resistance to the pressure 
exerted by means of a specific threat. That threat 
was intended to prevent the Director from pursuing 
the course of investigation. It achieved its purpose. 
 
On the basis of above findings, the Court ultimately came to 
the following conclusion:- 
“The Court has a responsibility to secure the rule of 
law. The Director was required to satisfy the court 
that all that could reasonably be done had been 
done to resist the threat. He has failed to do so. He 
submitted too readily because he, like the executive, 
concentrated on the effects which were feared 
should the threat be carried out and not on how the 
threat might be resisted. No one whether within 
this country or outside is entitled to interfere with 
Const.P.76/2007, etc. 
 
168 
the course of our justice. It is the failure of govt. and 
the defendant to bear the essential principle in mind 
that justifies the intervention of this court. We shall 
hear further arguments as to the nature of such 
intervention. But we intervene in fulfillment of our 
responsibility to protect the independence of the 
Director and of our criminal justice system from 
threat. On 11 Dec 2006, Prime Minister said that this 
was the clearest case for intervention in the public 
interest he had seen. We agree.” 
 
103.  
It is further to be noted that the international 
cooperation, for the purpose of prevention of corruption, has 
been considered in the comity of the nations, as their 
commitment to achieving the object, under the United 
Nation’s Convention Against Corruption, 2005. Relevant 
portion 
therefrom 
is 
reproduced 
hereinbelow 
for 
convenience:- 
“The purposes of this Convention are:  
(a) 
To promote and strengthen measures to prevent 
and combat corruption more efficiently and effectively; 
(b) 
To promote, facilitate and support international 
cooperation and technical assistance in the prevention 
of and fight against corruption, including in asset 
recovery; 
(c) 
To promote, integrity accountability and proper 
management of public affairs and public property. 
 
Recalling 
the 
work 
carried 
out 
by 
other 
international and regional organizations in this field, 
including the activities of the African Union, the council 
of Europe, the Customs Cooperation Council (also 
known as the World Customs Organization), the 
European Union, the League of Arab States, the 
Const.P.76/2007, etc. 
 
169 
Organization 
for 
Economic 
Cooperation 
and 
Development and the Organization of American States, 
 
Taking note with appreciation of multilateral 
instruments 
to 
prevent 
and 
combat 
corruption, 
including inter alia, the Inter-American Convention 
against Corruption, adopted by the Organization of 
American States on 29 March 1996, the Convention on 
the Fight against Corruption involving Officials of the 
European Communities or Officials of Member States of 
the European Union, adopted by the Council of the 
European Union on 26 May 1997, the Convention on 
Combating Bribery of Foreign Public Officials in 
International Business Transactions, adopted by the 
Organization 
for 
Economic 
Cooperation 
and 
Development on 212 November 1997, the Criminal Law 
Convention on Corruption, adopted by the Committee 
of Ministers of the Council of Europe on 27 January 
1999, the Civil Law Convention on Corruption, adopted 
by the Committee of Ministers of the Council of Europe 
and 4 November 1999, and the African Union 
Convention on Preventing and Combating Corruption, 
adopted by the Heads of State and Government of the 
African Union on 12 July, 2003. 
Welcoming the entry into force on 29 September, 
2003 of the United Nations Convention against 
Transnational Organized Crime.”  
 
104.  
The Government of Pakistan is also signatory to 
the above UN Convention as it has been ratified by Pakistan 
on 31st August, 2007, regarding international cooperation in 
criminal matters in accordance with Articles 44 to 50 of the 
above noted UN Convention, according to which, where 
appropriate and consistent with their domestic legal system, 
the State Parties shall consider assisting each other in 
investigation or proceedings in civil and administrative 
matters, relating to corruption.  
Const.P.76/2007, etc. 
 
170 
105.  
Learned counsel appearing for the petitioners 
vehemently contended that on the one hand, the Government 
of Pakistan is signatory to the UN General Assembly 
Regulation No. 58/41 of 31st October, 2003, on the 
international cooperation relating to corruption but at the 
same time, by means of adding Section 33F in the NAO, 1999 
through Section 7 of the NRO, 2007,  the prolonged pending 
proceedings, initiated prior to 12th October 1999, against 
‘holders of public office’, inside or outside the country, and 
cases at the stage of investigation or pending before the High 
Court or Supreme Court, have been ordered to be withdrawn 
and terminated by means of the same legislative order; 
therefore, this amendment is in clear contravention to the 
provisions of the NAO, 1999 as well as to the above referred 
international treaty. This act of the legislative authority is not 
only unconstitutional but simultaneously against the 
principle of the trichotomy of powers.  
106.  
There is no need to undertake the lengthy 
discussion relating to powers to withdraw cases. However, 
as it has been pointed out hereinabove, that according to the 
scheme of the NAO, 1999 Section 25 of the NAO, 1999 
provides that notwithstanding anything contained in Section 
15 or in any other law, for the time being in force, where a 
Const.P.76/2007, etc. 
 
171 
‘holder of public office’ or any other person, prior to the 
authorization of investigation against him, voluntarily comes 
forward and offers to return the assets or gains, acquired or 
made by him in the course, or as a consequence of any 
offence, under this Ordinance, the Chairman NAB may 
accept such offer and after determination of the amount, due 
from such person, and its deposit with the NAB, discharge 
such person from all his liability in respect of the matter or 
transaction in issue. In this provision of law as well the word 
‘withdrawal’ has not been used, which is akin to process of 
discharge or acquittal of an accused under the system of 
criminal administration of justice.  
107.  
So far as withdrawal of a case is concerned, that is 
possible only with the consent of the Court, as provided in 
Section 494 Cr.P.C, detailed discussion, in respect whereof 
has already been made in the preceding paras, while 
examining the vires of Section 2 of the NRO, 2007.  
108.  
The words “termination of the proceedings, 
under investigation or pending in any Court, including a 
High Court and the Supreme Court”, are not recognized 
under any legal instrument, including the Constitution of 
Pakistan, Cr.P.C. or NAO, 1999. Much discussion has already 
been undertaken in this behalf, while examining the 
Const.P.76/2007, etc. 
 
172 
constitutionality of newly inserted clause (aa) in Section 31A 
of the NAO, 1999, whereby the judgments passed by the 
Court in absentia under the NAO, 1999, have been declared 
void ab initio by the legislative authority.  
109.  
The President of Pakistan being an authority to 
issue temporary legislation can discharge his functions under 
Article 89 of the Constitution, subject to limitation provided 
therein but admittedly, no such legislation can be issued, 
which is against the fundamental rights or any of the 
provisions of the Constitution. It seems that without caring 
about the fundamental rights of the non-beneficiaries of the 
NRO, 2007, on 5th October 2007, the then President had 
promulgated the NRO, 2007. On our query, learned Acting 
Attorney General for Pakistan (Mr. Shah Khawar) has placed 
on record the summary regarding promulgation of the NRO, 
2007, for the Prime Minster of Pakistan. A careful perusal of 
the same indicates that on 5th October 2007, when the 
summary was moved, the Cabinet in its meeting, held on the 
same day, had approved the draft of the NRO, 2007, in 
pursuance whereof, the Prime Minister was requested to 
advise the then President to approve and sign the NRO, 2007, 
as such on the same day i.e. 5th October 2007, the NRO, 2007 
was promulgated. It is also interesting to note that both the 
Const.P.76/2007, etc. 
 
173 
proceedings and the cases of corruption and corrupt 
practices, were being terminated or withdrawn in terms of 
Section 7 of the NRO, 2007, whereby Section 33F has been 
added in the NAO, 1999 regarding withdrawal and 
termination of prolonged pending proceedings initiated prior 
to 12th October 1999. The object, disclosed in the summary for 
the Cabinet, for issuance of the NRO, 2007 was that it was 
expedient to promote national reconciliation, foster mutual 
trust and confidence amongst ‘holders of public office’ and to 
make the election process more transparent. Ultimately, on 
the same day, the Ordinance was promulgated when the 
election of General Pervez Musharraf as the President (in 
uniform) was scheduled to be held on the very next day i.e. 
6th October 2007. At that time, a petition filed by Jamat-e-
Islami (PLD 2009 SC 549), was pending and during the 
course of hearing, vide order dated 5th October, 2007, General 
Pervez Musharraf was allowed to contest the election 
conditionally. However, remaining details with regard to 
issuance of the NRO, 2007 have already been published in 
Daily Dawn dated 5th October, 2007. 
110.  
We are conscious of the fact that temporary 
legislation cannot be struck down, taking into consideration 
the mala fide or subjective consideration for the issuance of 
Const.P.76/2007, etc. 
 
174 
such legislation but simultaneously this Court is empowered 
to examine the contents of the temporary legislation, if it is 
inconsistent with the fundamental rights, guaranteed by the 
Constitution or of any of the provisions of the Constitution 
has been violated. The Indian Supreme Court, when met 
with this situation, in the case of State of Rajasthan’s case 
(AIR 1977 SC 1361), observed as under:- 
“144. But when we say this, we must make it clear that 
the constitutional jurisdiction of this Court is confined 
only to saying whether the limits on the power 
conferred by the Constitution have been observed or 
there is transgression of such limits. Here the only limit 
on the Power of the President under Art. 356, cl. (1) is 
that the President should be satisfied that a situation 
has arisen where the Government of the State cannot be 
carried on in accordance with the provisions of the 
Constitution. The satisfaction of the President is a 
subjective one and cannot be tested by reference to any 
objective 
tests. 
It 
is 
deliberately 
and 
advisedly 
subjective because the matter in respect to which he is 
to be satisfied is of such a nature that its decision must 
necessarily 
be 
left 
to 
the 
executive 
branch 
of 
Government. There may be a wide range of situations 
which may arise and their political implications and 
consequences may have to be evaluated in order to 
decide 
whether 
the 
situation 
is 
such 
that 
the 
Government of the State cannot be carried on in 
accordance with the provisions of the Constitution. It is 
not a decision which can be based on what the Supreme 
Court of United States has described as "judicially 
Const.P.76/2007, etc. 
 
175 
discoverable and manageable standards." It would 
largely be a political judgment based on assessment of 
diverse and varied factors, fast changing situations, 
potential consequences, public reaction, motivations 
and responses of different classes of people and their 
anticipated future behaviour and a host of other 
considerations, in the light of experience of public 
affairs and pragmatic management of complex and 
often curious adjustments that go to make up the highly 
sophisticated mechanism of a modern democratic 
government. It cannot, therefore, by its very nature be a 
fit subject matter for judicial determination and hence it 
is left to the subjective satisfaction of the Central 
Government which is best in a position to decide it. The 
Court cannot in the circumstances, go into the question 
of 
correctness 
or 
adequacy 
of 
the 
facts 
and 
circumstances on which the satisfaction of the Central 
Government is based. That would be a dangerous 
exercise for the Court, both because it is not a fit 
instrument for determining a question of this kind and 
also because the Court would thereby usurp the 
function of the Central Government and in doing so, 
enter the 'Political thicket', which it must avoid if it is to 
retain its legitimacy with the people. In fact it would not 
be possible for the Court to undertake this exercise, 
apart from total lack of jurisdiction to do so, since by 
reason of Art. 74 cl. (2), the question whether any and if 
so what advice was tendered by the Ministers to the 
President cannot be enquired into by the Court, and 
moreover, 
"the 
steps 
taken 
by 
the 
responsible 
Government may be founded on information and 
apprehensions which are not known to and cannot 
always be made, known to, those who seek to impugn 
what has been done., (Vide Ningkan v. Government of 
Const.P.76/2007, etc. 
 
176 
Malaysic, 1970 AC 379). But one thing is certain that if 
the satisfaction is mala fide or is based on wholly 
extraneous and irrelevant grounds, the Court would 
have jurisdiction to examine it, because in that case 
there would be (sic-no?) satisfaction of the President in 
regard to the matter which he is required to be satisfied. 
The satisfaction of the President is a condition 
precedent to the exercise of power under Art. 356, cl. (1) 
and if it can be shown that there is no satisfaction of the 
President at all, the exercise of the power would be 
constitutionally invalid. Of course by reason of cl. (5) of 
Art. 356, the satisfaction of the President is final and 
conclusive and cannot be assailed on any ground but 
this immunity from attack cannot apply where the 
challenge is not that the satisfaction is improper or 
unjustified, but that there is, no satisfaction at all. On 
such a case it is not the satisfaction arrived at by the 
President which is challenged, but the existence of the 
satisfaction itself. 
Take, for example, a case where the President gives the 
reason for taking action under Art. 356, cl. (1) and says 
that he is doing so, because the Chief Minister of the 
State is below five feet in height and, therefore, in his 
opinion a situation has arisen where the Government of 
the State cannot be carried on in accordance with the 
provisions of the Constitution. Can the so called 
satisfaction of the President in such a case not be 
challenged on the ground that it is absurd or perverse 
or mala fide or based on a wholly extraneous and 
irrelevant ground and is, therefore, no satisfaction at all. 
It must of course be concerned that in most cases it 
would be difficult, if not impossible, to challenge the 
exercise of power under Art. 356, cl. (1 ) even on this 
Const.P.76/2007, etc. 
 
177 
limited ground, because the facts and circumstances on 
which the satisfaction is based would not be known, but 
where it is possible, the existence of the satisfaction can 
always be challenged on the ground that it is mala fide or 
based on wholly extraneous and irrelevant grounds. 
This proposition derives support from the decision of 
the Judicial Committee of the Privy Council in King 
Emperor v. Banwari Lal Sarma (72 Ind App 57: (AIR 
1945 PC 48) where Viscount Simon, L.C. agreed that the 
Governor General in declaring that emergency exists 
must act bona fide and in accordance with his statutory 
powers. This is the narrow minimal area in which the 
exercise of power under Art. 356, cl. (1) is subject to 
judicial review and apart from it, it cannot rest with the 
Court to challenge the satisfaction of the President that 
the situation contemplated in that clause exists.” 
 
However, subsequently, by means of 44th Amendment, 
Clause (4) of Article 123 of the Indian Constitution, which  
provided 
that 
"notwithstanding 
anything 
in 
this 
Constitution, the satisfaction of the President mentioned in 
clause (1) shall be final and conclusive and shall not be 
questioned in any Court on any ground", has been omitted. 
Therefore, in the case of A.K. Roy   v.   Union of India  (AIR 
1982 SC 710), the judgment passed in State of Rajasthan’s 
case (AIR 1977 SC 1361), was considered and it was held that 
“the Rajasthan case is often cited as an authority for the 
proposition that the courts ought not to enter the "political 
Const.P.76/2007, etc. 
 
178 
thicket"; it has to be borne in mind that at the time when that 
case was decided, Article 356 contained clause (5) which was 
inserted by the 38th Amendment, by which the satisfaction of 
the President mentioned in clause (1) was made final and 
conclusive and that satisfaction was not open to be 
questioned in any court on any ground; clause (5) has been 
deleted by the 44th Amendment and, therefore, any 
observations made in the Rajasthan case, on the basis of that 
clause, cannot any longer hold good; it is arguable that the 
44th Constitution Amendment Act leaves no doubt that 
judicial review is not totally excluded in regard to the 
question relating to the President's satisfaction”. Be that as it 
may, this Court, while dealing with the same proposition, in 
Fauji Foundation’s case (PLD 1983 SC 457), has observed as 
under:- 
206. The statement formulated by the High Court, 
namely: Notwithstanding the reference to Article 14 of 
the Constitution the above two decisions adequately 
support the contention of the learned counsel that no 
Legislature could be permitted to pass a law for the 
resolution of private dispute which could be decided by 
the Courts alone and such action amounted to 
infringement on the field of judiciary, is not discernible 
from these two decisions, nor can such a statement, as 
so widely stated, be enunciated in the context of the 
discussion that I have undertaken in this judgment. 
Const.P.76/2007, etc. 
 
179 
207. The learned counsel for the respondent relied on 
Basanta Chandra Ghose and others v. Emperor (AIR 
1944 FC 86), to impress that the Legislature cannot 
usurp judicial power in the guise of enacting law. In this 
case clause (2) of section 10 of the Restriction & 
Detention Ordinance (3 of 1944) was challenged on the 
ground that "it was an arrogation of judicial power by 
legislative authority," as what it achieved was direct 
disposal of cases by the Legislature itself. In accepting 
this argument Spens, C. J., held that such a provision 
was an exercise of judicial power and not an enactment 
of law as it discharged the pending proceedings which 
raised questions of fact which had to be determined in 
reference to facts, as for example the competency of the 
detaining authority or the colourable nature of the act 
or the order though purporting to be passed by an 
authority was not in reality the act of that authority ; 
and as the determination did not depend on any rule of 
law it was clearly a judicial act and not an enactment of 
law. The ratio of this case brings out the distinction 
between the exercise of judicial power and legislation. 
Essentially as was held the High Court was called upon 
to 
decide 
a 
controversy 
which 
involved 
the 
determination of facts which did not depend on any 
rule of law. Clearly there was, therefore, an exertion of 
judicial power, which within its ambit involves an 
inquiry and investigation of facts and then declaring 
and enforcing liabilities as they stand on present or past 
facts, and under any law which already exists, which 
could not be done otherwise than by the High Court 
which was seized of the matter. In this situation the 
Federal Court construed this provision as an exercise of 
judicial power by a legislative enactment. In Prentis v. 
Atlantic Coast Line Co. (53 Law Ed. 158), at p. 158, 
Const.P.76/2007, etc. 
 
180 
Justice Holmes distinguished the two (legislation and 
judicial power) in the following words: 
"A judicial inquiry investigates, declares, and 
enforces liabilities as they stand on present or 
past facts and under laws supposed already to 
exist. That is its purpose and end. Legislation, on 
the other hand, looks to the future and changes 
existing condition by making a new rule, to be 
applied thereafter to all or some part of those 
subject to its power." 
 
111.  
The present case is singular and on its own. We 
do not even have to go into whether there was any objective 
basis for the satisfaction required by Article 89 of 
Constitution, nor into the issue whether such satisfaction is to 
be entirely subjective. Present case can be resolved simply on 
the ground that the Federal Government has not even 
defended the NRO, 2007 and thus not even asserted that 
there was indeed any such satisfaction at all, subjective or 
objective. There should at least have been an assertion, 
howsoever weak it may have been, for the Court to 
undertake the exercise envisaged in the State of Rajasthan’s 
case (AIR 1977 SC 1361). In the absence of even a simple 
assertion by the Government we can easily hold that there 
was no satisfaction at all.  
112.  
As discussed hereinabove that firstly, the NRO, 
2007 as a whole and in particular, its Sections 2, 6 & 7, are 
inconsistent with Article 25 of the Constitution, as it has 
Const.P.76/2007, etc. 
 
181 
created unreasonable classification, having no rational nexus 
with the object of the NRO, 2007.  
113.  
Besides 
above, 
the 
principle 
of 
equality 
(Musawat), as enshrined in Article 25 of the Constitution, has 
its origin in the Islamic teachings. Reference in this behalf 
may be made to Muhammad (PBUH) Encyclopedia of 
Seerah (Sunnah, Da’wah and Islam), 1st Edn. 1986. Vol.IV 
(p:147-148). Relevant portion therefrom, on the subject of 
“Equality” is reproduced hereinbelow for convenience:- 
“Equality  
Equality is an essential requisite of justice, because 
when there is discrimination and partiality between 
people, there is no justice. The Code of Allah demands 
absolute equality of rights between all people without 
any discrimination or favouritism between man and 
man and between man and woman on any count.  
The Qur’an declares. “O mankind! Behold, we have 
created you all out of a male and a female, and have 
made you into nations and tribes, so that you may 
know each other. Surely, the noblest of you in the Sight 
of Allah is the one who is most pious.” (49:13) 
This verse clearly establishes equality of all men and 
women on the basis of common parentage, and as such 
discounts all claims of superiority or discrimination for 
any person or group of persons. There is no rational or 
logical ground for such claims, and therefore, it is 
unreal and unnatural to demand discrimination 
between man and man or between man and woman on 
any count. 
Const.P.76/2007, etc. 
 
182 
Besides’ all human beings are servants (ibid) of Allah 
and therefore equal. 
They are all created by Allah and all are His servants 
alone. As such they are all equal and enjoy equal rights 
in all areas of life. In His service and obedience, all 
humans are equal and stand on the same level  without 
any discrimination all as one race and one people before 
Him, no one claiming any special privileges and 
honours. 
In Surah al-A’raf we have these words: “When your 
Lord drew forth from the children of Adam from their 
loins their descendants, and made them testify 
concerning themselves, saying: ‘Am I not your Lord?’ 
They said: Yes we do testify.’” (7:172). And then we find 
these words; “Surely, this Brotherhood of yours is 
single Brotherhood, and I am your Lord: therefore serve 
and obey Me (and no other).” (21:92 and 23:52)) 
This concept of equality bestows equal rights upon all 
members of the human race and leaves no room for any 
discrimination of any kind, whether by colour, creed, 
race or sex. If there is any discrimination anywhere, it is 
man made, not divinely ordained, and therefore, must 
be denounced, condemned and discarded. 
Any such discrimination is unnatural and artificial and 
goes against the basic Doctrine of Tawhid. As such it 
will endanger the right balance and stability of human 
social life. 
If there is any discrimination for any man or woman in 
Islam, it is on merit and on merit alone. Those who 
develop their personal relationship with Allah fear 
Const.P.76/2007, etc. 
 
183 
Allah, attain degrees of piety and taqwa of Allah, and 
reach higher stations of excellence in the Sight of Allah. 
However, even they stand equal with others in the 
enjoyment of rights in society, and can claim no 
superiority or favouritism over others so far as social 
rights are concerned.  
This basic doctrine also demands equality of all men 
and women before the law and negates any kind of 
discrimination between them. This is the essential 
requirement of the Rule of Law in Islam: that all men 
and women are equal in the eyes of the Law and must 
be treated as such. Respect for human dignity, upon 
which the Prophet of Islam laid so much emphasis, also 
demands equality for all men and women in all fields of 
human activity. (For details see under “Basic Human 
Rights” in Volume III of this work) 
Equality of Rights 
It is implicit in the Doctrine of Tawhid and is also an 
essential ingredient of justice and equality that all 
people must enjoy equal rights without discrimination 
on any count in all fields and departments of life. In the 
enjoyment of social, political and religious rights, there 
must not be any discrimination between ruler and 
ruled, employer and employee, rich and poor and man 
and woman: all should enjoy these rights freely, equally 
and without any check or restriction. Denial of any of 
these rights to any member would, in fact, be a denial of 
the Doctrine of Tawhid. 
Equal Treatment 
The logical consequences of the above principle in 
practice demands absolutely equal treatment of all 
citizens, without any reservation, in all areas of life. It 
Const.P.76/2007, etc. 
 
184 
also requires: (a) equality of opportunity of education, 
training, employment and promotion in all services for 
all citizens, irrespective of their social or political status 
and influence; (b) equal treatment in all departments, 
without discrimination of any kind between rich and 
poor, big and small or workers and employers; (c) the 
right to a livelihood of every member of the Muslim 
state. It is the birthright of every person to have a 
guaranteed decent living and decent wage from the 
state. This calls indirectly for equitable distribution of 
wealth between all the members of the state on the 
principle of maximum circulation of the total wealth of 
the nation, discouraging, as far as possible, the 
concentration of wealth among a few people (59:7); and 
(d) it is also implicit in the above principle that for the 
political and social stability of society and state, matters 
of national interest must be decided through a process 
of consultation with the people, and all state affairs on 
all levels must be decided on the basis of the concept of 
consultation in its true sense, as envisaged by the 
Qura’n 
(42:38) 
and 
practiced 
by 
the 
Prophet 
Muhammad (PBUH).” 
114.  
Corruption and corrupt practices, being a crime, if 
proved, against a ‘holder of public office’ takes away his 
qualification to contest the election because, prima facie, he 
has breached the trust of his electorate. Therefore, by 
inserting Section 33F in the NAO, 1999 by means of Section 7 
of the NRO, 2007, possibility of raising objection on the 
qualification of a person to be elected or chosen as a member 
of the Parliament has been negated for limited purpose, in 
Const.P.76/2007, etc. 
 
185 
view of Article 62(f) of the Constitution, a person having been 
convicted/sentenced by the Court under the NAO, 1999 shall 
stand absolved as the case has been withdrawn against him 
or the proceedings have been terminated, pending in any 
Court including the High Court and Supreme Court, in 
appeal or whatever the case may be. Therefore, instead of 
following the command of Article 5 of the Constitution, 
Section 7 of the NAO has contravened Article 62(f) of the 
Constitution. It is true that Section 62(f) of the Constitution 
cannot be considered self-executory but if a person involved 
in corruption and corrupt practices has been finally adjudged 
to be so, then on the basis of such final judgment, his 
candidature on the touchstone of Article 62(f) of the 
Constitution can be adjudged to the effect whether he is 
sagacious, righteous, non-profligate, honest or Ameen.  
115.  
It is true that on an objection against a candidate, 
without any support of evidence, the provisions of Article 62 
of the Constitution cannot be pressed into service, because it 
is a provision of Constitution which is not self executory. 
Reference in this behalf may be made to Muhammad Afzal  
v.  Muhammad Altaf Hussain (1986 SCMR 1736).  
116.  
However, with reference to examining the vires 
of Section 7 of the NRO, 2007, in pursuance of which Section 
Const.P.76/2007, etc. 
 
186 
33F has been inserted in the NAO, 1999, with an approach 
that a ‘holder of public office’, as per the mandate of law, has 
been absolved without following the legal course from the 
allegations of corruption or corrupt practices, which also 
keeps the element of trust in its fold, and washed him from 
all such like sins, then how he can be considered qualified to 
contest the election because conviction and sentence under 
Section 9 of the NAO, 1999 has not been set aside legally, and 
whether such ‘holder of public office’, with a stigma upon 
him to be corrupt and involved in corrupt practices, can 
become a member of the Parliament, which is a sovereign 
body, representing the people of Pakistan. Article 62 (f) has 
been incorporated in the Constitution by means of 
President’s Order No.14 of 1985 (The Revival of Constitution 
Order, 1985) and it being a part of the Constitution has to be 
taken into consideration by the Courts, while examining the 
case of a convict, involved in corruption and corrupt 
practices, who has attained the status of innocent person by 
means of a law which has washed away his conviction/ 
sentence by withdrawal or termination of cases or 
proceedings, however, subject to furnishing strong evidence 
for establishing the allegation mentioned in Article 62(f) of 
the Constitution. As it has been noted hereinabove that this 
provision was inserted by a dictator but it is still continuing 
Const.P.76/2007, etc. 
 
187 
although five National Assemblies and Senate had been 
elected and completed their terms, but no effective steps, so 
far have been taken in this behalf.   
117.  
Now turning towards the question under 
consideration in respect of insertion of Section 33F in the 
NAO, 1999 by means of Section 7 of the NRO, 2007, on the 
basis of which either the proceedings have been terminated 
or the cases have been withdrawn, as far as the withdrawal 
of proceedings under Section 494 Cr.P.C. is concerned, it has 
already been discussed hereinabove. while examining the 
implications of Section 2 of the NRO, 2007 wherein it was 
held that no withdrawal without the consent of the Court, 
seized with the case, is possible and this provision itself 
being discriminatory has been found in derogation to the 
fundamental rights enshrined in Article 25 of the 
Constitution and at the same time withdrawal of the criminal 
cases, particularly the murder cases, without hearing the 
heirs of victims. Likewise, while examining the vires of 
Section 6 of the NRO, 2007 it has been held that the 
legislature is not empowered to declare any judgment void 
ab initio, however, subject to following the principles, 
discussed hereinabove, which are lacking in the instant case. 
Const.P.76/2007, etc. 
 
188 
As far as principles of withdrawal of cases under the NAO, 
1999 is concerned, Section 25 of the NAO, 1999 contains that:- 
“25.   (a)   Notwithstanding anything contained in 
section 15 or in any other law for the time being in force, 
where a holder of public office or any other person, 
prior to the authorization of investigation against him, 
voluntarily comes forward and offers to return the 
assets or gains acquired or made by him in the course, 
or as the consequence, of any offence under this 
Ordinance, the Chairman NAB may accept such offer 
and after determination of the amount due from such 
person and its deposit with the NAB discharge such 
person from all his liability in respect of the matter or 
transaction in issue:  
Provided that the matter is not sub judice in any court 
of law. 
(b)        Where at any time after the authorization of 
investigation, before or after the commencement of the 
trial or during the pendency of an appeal, the accused 
offers to return to the NAB the assets or gains acquired 
or made by him in the course, or as a consequence, of 
any offence under this Ordinance, the Chairman, NAB, 
may, in his discretion, after taking into consideration 
the facts and circumstances of the case, accept the offer 
on such terms and conditions as he may consider 
necessary, and if the accused agrees to return to the 
NAB the amount determined by the Chairman, NAB, 
the Chairman, NAB, shall refer the case for the approval 
of the Court, or as the case may be, the Appellate Court 
and for the release of the accused. 
(c)        The amount deposited by the accused with the 
NAB shall be transferred to the Federal Government or, 
as the case may be, a Provincial Government or the 
Const.P.76/2007, etc. 
 
189 
concerned bank or financial institution, company, body 
corporate, co-operative society, statutory body, or 
authority concerned within one month from the date of 
such deposit.” 
Subject to exercise of above powers, a case can be withdrawn 
on the basis of entering into plea bargain, with all 
consequences. So far as, withdrawal from the prosecution 
under Section 31B of the NAO, 1999, is concerned, that is also 
subject to consent of the Court. Section 31B of the NAO, 1999 
reads as follows:- 
“31B. Withdrawal from Prosecution. The Prosecutor 
General Accountability may, with the consent of the 
Court, withdraw from the prosecution of any accused 
Person generally or in respect of any one or more of the 
offences for which he is tried and upon such 
withdrawal: 
(i)       if it is made before a charge has been framed, the 
 
accused shall be discharged in respect of such 
 
offence or offences; and 
(ii)      if it is made after a charge has been framed, he 
shall be acquitted in respect of such offence or 
offences.”  
 
118.  
It is important to note that a person, who enters 
into plea-bargain as per the mandate of Section 25 of the 
NAO, 1999, would be disqualified to contest the election or to 
hold the public office. The language employed in Section 33F 
of the NAO, 1999, inserted by means of Section 7 of the NRO, 
2007 does not indicate that the withdrawal had to take place, 
subject to any of the above provisions, either under Section 
Const.P.76/2007, etc. 
 
190 
25 or under Section 31B of the NAO, 1999, with the consent 
of the Court.  
119.  
So far as withdrawal from the cases inside or 
outside the country, as per Section 33F of the NAO, 1999, 
inserted through Section 7 of the NRO, 2007, is concerned, it 
would mean that the ‘holders of public office’ have been 
absolved from the charge of corruption and corrupt practices, 
therefore, by adopting such procedure, the legislative 
authority had transgressed its jurisdiction, because such 
powers are only available to the judiciary and the 
Constitution provides guarantee to secure the independence 
of the judiciary. Reference in this behalf may be made to 
Article 175 of the Constitution, which has been extensively 
interpreted in Mehram Ali’s case (PLD 1998 SC 1445) and 
Liaquat Hussain’s case (PLD 1999 SC 504).  
120.  
A perusal of Section 33F of the NAO, 1999, 
inserted through Section 7 of the NRO, 2007 further reveals 
that 
while 
using 
the 
expressions 
‘withdrawal’ 
and 
‘termination’, it was not considered that in the cases of the 
offences, falling within the mischief of the NAO, 1999, 
charged against the ‘holders of public office’, no such judicial 
powers can be given to the legislature to withdraw or 
terminate the cases or proceedings. As far as, the words 
Const.P.76/2007, etc. 
 
191 
‘termination 
of 
prolonged 
pending 
proceedings’, 
are 
concerned, these are alien to the system of criminal 
administration of justice, prevailing in the country under 
Criminal Procedure Code and the NAO, 1999.  
121.   
In order to ascertain that as to how many persons 
have benefited from Section 33F of the NAO, 1999, inserted 
through Section 7 of the NRO, 2007, the NAB was asked to 
furnish the details of the same. Accordingly, after a great deal 
of difficulty, the list was provided by the Chairman NAB, 
which indicates that there are two categories of the 
beneficiaries i.e. ‘holders of public office’; whose cases were 
pending (a) inside Pakistan and (b) outside Pakistan, in 
which US$ 60 million are involved for which a request for 
mutual legal assistance and civil party to proceedings, has 
been made by the Federal Government. As far as the 
category (a) is concerned, this Court, in exercise of its powers 
conferred under Article 187 read with Article 190 of the 
Constitution, may direct the NAB or any executive authority 
to supply requisite information.  
122.  
So far as Article 190 of the Constitution is 
concerned, it imposes a constitutional obligation upon all the 
executives and judicial authorities, throughout the country to 
act in aid of the Supreme Court. Reference in this behalf may 
Const.P.76/2007, etc. 
 
192 
be made to Al-Jehad Trust  v.  Federation of Pakistan (PLD 
1997 SC 84), but in implementing the judgment, in letter and 
spirit, regarding the cases outside the country, the Court may 
feel handicapped. Therefore, it would be an obligation and 
the duty of the executive to ensure initiation of proceedings 
according to law.  
123.  
At this juncture, it may be noted that as per the 
list provided by the NAB, regarding cases falling within 
category (b) in which a huge amount is involved, it was also 
pointed out that to get back this money, subject to 
determination, belonged to the people of Pakistan, an amount 
ranging between 660 million to 2 billion rupees was spent but 
despite our directions, the Chairman NAB could not furnish 
the exact figure. This Court asked the learned Prosecutor 
General to furnish the details in respect of the amount 
involved in the cases out side the country, in pursuance of 
request for mutual legal assistance and civil party to 
proceedings, was made by the Federal Government. 
124.  
In reply, the learned Prosecutor General NAB 
furnished the following details:- 
a) 
The Magistrate after considering the material 
opined that, prima facie, case has been made 
out and sent it to the Attorney General for 
Const.P.76/2007, etc. 
 
193 
launching the proceeding and also passed the 
order for freezing of account. 
b) 
The accused filed appeal against the said 
order, which was also dismissed being based 
on vague grounds.  
c) 
Our lawyer informed that the Attorney 
General in Geneva had decided not to 
prosecute the accused further and the Court 
expressed its dissatisfaction over it.  
d) 
The Magistrate in Geneva has passed an order 
for de-freezing of the money.  
In respect of item (c) above, the learned Prosecutor General 
NAB admitted that in the proceedings, reference was made 
to a letter sent by the then Attorney General for Pakistan 
(Malik Muhammad Qayyum). Whereas, Malik Muhammad 
Qayyum, the then Attorney General for Pakistan, who 
appeared on Court’s call, informed the Court that he had sent 
a letter to the Attorney General of Geneva, mentioning 
therein the relevant provisions of the NRO, 2007, regarding 
withdrawal of cases. Similarly, learned Acting Attorney 
General for Pakistan (Mr. Shah Khawar) appeared and stated 
that the request for mutual legal assistance and civil party to 
proceedings, was made by the Federal Government through 
the Attorney General, therefore, he would apprise the Court 
of the position of cases etc. According to him, so far as the 
Const.P.76/2007, etc. 
 
194 
amount lying in the Swiss Banks was concerned, 25 other 
individuals had also filed claims against it; however, a 
request was made by the former Attorney General for 
Pakistan (Malik Muhammad Qayyum) for withdrawal of 
money but as per his knowledge that request was not 
acceded to by the Attorney General Office of Switzerland as 
well as by the concerned Magistrate because their version 
was that they would deal with the case in accordance with 
their local laws. However, on 15th December 2009, the then 
Attorney General for Pakistan (Malik Muhammad Qayyum) 
again appeared on Court’s call; he read Section 7 of the NRO, 
2007 with reference to withdrawal of cases and informed the 
Court that Constitution Petition No. 265 of 2008 (Asif Ali 
Zardari v. Government of Pakistan) was filed before the High 
Court of Sindh, whereby directions were sought for the 
Federation and the NAB, both, that they should withdraw all 
the cases pending in Pakistan and specifically proceedings in 
Geneva and in London and all others under the provisions of 
the NRO, 2007; the NAB authorities appeared before the 
Sindh High Court and made a statement that they would 
make efforts to withdraw the proceedings from all the Courts 
in and outside Pakistan;  the Court, vide order dated 4th 
March 2008, directed to do the needful within a period of two 
weeks; he further stated that in pursuance of said order and 
Const.P.76/2007, etc. 
 
195 
also under the instructions of the then President, he issued a 
letter dated 9th March 2008 to the Attorney General of 
Geneva regarding withdrawal of proceedings. Copy of said 
letter has also been placed on record, which is reproduced 
hereinbelow in extenso:- 
“Re: P/11105/1997 and CP 289/97, Republic of 
Pakistan Vs/ Asif Ali Zardari and Jens Schlegelmich  
 
Dear Mr. Attorney General, 
We write you further to our meeting of 7 April 2008. 
 
We hereby confirm that the Republic of Pakistan having 
not suffered any damage withdraws in capacity of civil 
party not only against Mr. Asif Ali Zardari but also 
against Mr. Jens Schlegelmich and any other third party 
concerned by these proceedings. This withdrawal is 
effective for the above captioned proceedings as well as 
for any other proceedings possibly initiated in 
Switzerland (national or further to international judicial 
assistance). The Republic of Pakistan thus confirms 
entirely the withdrawal of its request of judicial 
assistance 
and 
its 
complements, 
object 
of 
the 
proceedings CP/289/97. 
 
Request for mutual assistance made by the then 
government, which already stand withdrawn, was 
politically motivated. Contract was awarded to pre-
shipment inspection companies in good faith in 
discharge of official functions by the State functionaries 
in accordance with rules.  
 
The Republic of Pakistan further confirms having 
withdrawn itself as a damaged party and apologizes for 
the inconvenience caused to the Swiss authorities. 
 
 
 
 
Your sincerely, 
 
 
 
 
 
Sd/- 
 
 
 
Malik Muhammad Qayyum 
 
 
 
Attorney General for Pakistan.”  
 
125.  
Despite our repeated queries that how request for 
withdrawal of mutual assistance and civil party to 
Const.P.76/2007, etc. 
 
196 
proceedings, initiated by the Federal Government, were 
withdrawn, no satisfactory answer was given to us. We have 
noticed that the Chairman NAB, who should have assisted 
the Court diligently, was reluctant to do so for one or the 
other reason. Therefore, having left with no option, the 
Federal Secretary, Law & Justice Division, Government of 
Pakistan was called upon to appear and place on record 
copies of the file, pertaining to the Swiss cases. His statement 
was as follows:- 
“a letter was addressed to Law Ministry by Mr. Farooq 
H. Naik, ASC (on behalf of Mohtarma Benazir Bhutto 
and Asif Ali Zardari), requesting therein that since this 
NRO, 2007 has been promulgated, as such all cases 
should be dropped, emphasizing upon the cases in 
Geneva Court; that application was processed and in 
routine placed before the then Minister Law (Zahid 
Hamid), who opposed the request and wrote a detailed 
note that it is not within their ambit so kindly contact 
the foreign office. After that file does not show 
anything”.    
126.  
Likewise, Mr. Salman Faruqui, Secretary General 
to the President also appeared on Court’s call and informed 
that no such file existed in his office or at President’s Camp 
Office, Rawalpindi. 
127.  
As far as issuing a letter to Attorney General of 
Geneva dated 7th April 2008 by Malik Muhammad Qayyum 
Const.P.76/2007, etc. 
 
197 
(the then Attorney General) is concerned, it seems that he 
had done so in his personal capacity, against the Rules of 
Business, 1973. In this behalf it may be noted that under Rule 
14 of the Rules of Business, 1973, he was required to consult 
the Law, Justice and Human Rights Division on all legal 
questions, arising out of any case. Had he consulted the  Law, 
Justice & Human Rights Division, he would have been 
advised not to send any letter in this regard because the 
Ministry of Law & Justice had already declined such request 
as was pointed out by the Secretary Law & Justice Division, 
whose statement has been referred to hereinabove.  
128.  
It is also important to note that under sub-Rule 
(2) of Rule 14 of the Rules of Business, 1973, no Division shall 
consult the Attorney General except through the Law, Justice 
& Human Rights Division and in accordance with the 
procedure laid down by that Division. Beside it, stand taken 
by Malik Muhammad Qayyum that he was asked by the then 
President of Pakistan to do so, does not seem to be correct 
because under Rule 5(11-A) of the Rules of Business, 1973, 
verbal orders given by a functionary of the Government 
should, as a matter of routine, be reduced to writing and 
submitted to the issuing authority; if time permits, the 
confirmation shall invariably be taken before initiating 
Const.P.76/2007, etc. 
 
198 
action; however, in an exigency, where action is required to 
be taken immediately or it is not possible to obtain written 
confirmation of the orders before initiating actions, 
functionary to whom the verbal orders are given shall take 
the action so required and at the first available opportunity, 
obtain the requisite confirmation while submitting to the 
issuing authority a report of the action taken by him. The 
statement of Mr. Salman Faruqui, Secretary General to the 
President, reflects that no such file exists.  Since Malik 
Muhammad Qayyum, the then Attorney General for 
Pakistan has done so in violation of the Rules of Business, 
1973, therefore, he is liable to account for his such action.  
129.  
Section 21 of the NAO, 1999 is a comprehensive 
provision of law, which spells out the nature of the request to 
a Foreign State for mutual legal assistance including; freezing 
of assets to the extent to which the assets are believed on 
reasonable ground to be situated in that State; confiscate 
articles and forfeit assets to the extent to which the articles or 
assets, as the case may be, are believed to be located in that 
State; transfer to Pakistan any such evidence, documents, 
things, articles, assets or proceeds realized from the disposal 
of such articles or assets, etc. We believe that to curb the 
culture of corruption and corrupt practices globally it has 
Const.P.76/2007, etc. 
 
199 
become necessary to enact such law on the basis of which the 
objects noted hereinabove could be achieved. 
130.  
Learned counsel appearing for the petitioners 
impressed upon the arguments that on the one hand in 
pursuance of the NRO, 2007, the cases against the ‘holders of 
public office’ either have been withdrawn or terminated, who 
should have been found guilty for the corruption or corrupt 
practices (under Section 9 of the NAO, 1999)  and sentenced 
to imprisonment as well as fine, and on the other hand, the 
‘holders of public office’ who have been convicted and 
sentenced, and against their convictions, appeals pending 
either before the High Court or the Supreme Court, have 
been withdrawn. Similarly against those ‘holders of public 
office’, who were acquitted but against their acquittal 
proceedings were pending before the superior Courts, have 
also been illegally provided clean-chit by withdrawal or 
termination of the proceedings, contrary to constitution and 
the law, knowing well that this country is signatory to the 
UN Convention Against Corruption. A perusal of UN 
Convention Against Corruption indicates that the state had 
responsibility to develop and implement or maintain 
effective, coordinated anti-corruption policies; to take 
measures to prevent money laundering; to take measures for 
Const.P.76/2007, etc. 
 
200 
freezing, seizure and confiscation of proceeds of crime, 
derived from offences established in accordance with the 
Convention, or the property the value of which corresponds 
to that of such proceeds, property, equipment or other 
instrumentalities used in or destined for use in offences 
established in accordance with the Convention, etc.; State 
parties shall consider assisting each other in investigations of 
and proceedings in civil and administrative matters relating 
to corruption; as well as affording to one another the widest 
measure of mutual legal assistance in investigations, 
prosecutions, and judicial proceedings in relation to the 
offences covered by the Convention; prevention and 
detection of transfers of proceeds of crime. On the other 
hand, the promulgation of the NRO, 2007, instead of 
preventing corruption and corrupt practices, has encouraged 
the same. We have no option but to agree with the contention 
of the learned counsel for the petitioners, as the same is based 
on legal and logical premise.  
131.  
We have already pointed out in the preceding 
paras of this judgment that under the provisions of NAO, 
1999, there is a separate scheme for the withdrawal of cases. 
However, Article 45 of the Constitution confers power upon 
the President of Pakistan to the effect that the President shall 
Const.P.76/2007, etc. 
 
201 
have power to grant pardon, reprieve and respite, and to 
remit, suspend or commute any sentence passed by any 
Court, tribunal or other authority. The cases under Section 
33F of the NAO, 1999, inserted through Section 7 of the NRO, 
2007, are also not covered under Article 45 of the 
Constitution and in this behalf no other law has been referred 
to by any of the learned counsel appearing for the parties. 
There is no cavil with the proposition that the criminal 
Courts, including the Trial, Appellate and Revisional, are 
empowered to acquit, set aside the conviction/ sentence or 
quash the proceedings, but without adhering to this 
provision, the legislative authority, in its wisdom, has 
withdrawn or terminated the cases or proceedings, 
purportedly, in exercise of power, not vested in it. 
Consequently, all the ‘holders of public office’ have not been 
dealt with in accordance with law, principle of which has 
been enshrined in Article 4 of the Constitution.  
132.  
At this juncture, it may occur in one’s mind that 
what are the judicial powers. This question has not been 
discussed in Mehram Ali’s case (PLD 1998 SC 1445) or in 
Liaquat Hussain’s case (PLD 1999 SC 504). However, one of 
the learned counsel has placed on record a judgment in the 
case of Brandy  v.  Human Rights & Equal Opportunity 
Const.P.76/2007, etc. 
 
202 
Commission (183 CLR 245) from the Australian jurisdiction 
passed by High Court of Australia, which is the Apex Court 
of the country. Relevant portion therefrom is reproduced 
hereinbelow for ready reference:- 
“9. Difficulty arises in attempting to formulate a 
comprehensive definition of judicial power not so much 
because it consists of a number of factors as because the 
combination is not always the same. It is hard to point 
to any essential or constant characteristic. Moreover, 
there are functions which, when performed by a court, 
constitute the exercise of judicial power but, when 
performed by some other body, do not (66 See Reg. v. 
Davison [1954] HCA 46; (1954) 90 CLR 353 at 368). 
These difficulties were recognized by the Court in 
Precision Data Holdings Ltd. v. Wills (67 [1991] HCA 
58; (1991) 173 CLR 167 at 188-189):  
“The 
acknowledged 
difficulty, 
if 
not 
impossibility, of framing a definition of 
judicial power that is at once exclusive and 
exhaustive arises from the circumstance 
that many positive features which are 
essential to the exercise of the power are 
not by themselves conclusive of it. Thus, 
although the finding of facts and the 
making of value judgments, even the 
formation of an opinion as to the legal 
rights and obligations of parties, are 
common ingredients in the exercise of 
judicial power, they may also be elements 
in the exercise of administrative and 
legislative power."  
 
One is tempted to say that, in the end, judicial power is 
the power exercised by courts and can only be defined 
by reference to what courts do and the way in which 
they do it, rather than by recourse to any other 
Const.P.76/2007, etc. 
 
203 
classification of functions. But that would be to place 
reliance upon the elements of history and policy which, 
whilst they are legitimate considerations, cannot be 
conclusive. 
10. It is traditional to start with the definition advanced 
by Griffith CJ in Huddart, Parker and Co. Proprietary 
Ltd. v. Moorehead (68 [1909] HCA 36; (1909) 8 CLR 330 
at 357) in which he spoke of the concept of judicial 
power in terms of the binding and authoritative 
decision of controversies between subjects or between 
subjects and the Crown made by a tribunal which is 
called upon to take action. However, it is not every 
binding and authoritative decision made in the 
determination of a dispute which constitutes the 
exercise 
of 
judicial 
power. 
A 
legislative 
or 
administrative decision may answer that description. 
Another important element which distinguishes a 
judicial decision is that it determines existing rights and 
duties and does so according to law. That is to say, it 
does so by the application of a pre-existing standard 
rather than by the formulation of policy or the exercise 
of an administrative discretion. Thus Kitto J in Reg. v. 
Gallagher; Ex parte Aberdare Collieries (69 (1963) 37 
ALJR 40 at 43) said that judicial power consists of the 
"giving of decisions in the nature of adjudications upon 
disputes as to rights or obligations arising from the 
operation of the law upon past events or conduct". But 
again, as was pointed out in Re Cram; Ex parte 
Newcastle Wallsend Coal Co. Pty. Ltd. (70 [1987] HCA 
29;(1987) 163 CLR 140 at 149) , the exercise of non-
judicial functions, for example, arbitral powers, may 
also involve the determination of existing rights and 
Const.P.76/2007, etc. 
 
204 
obligations if only as the basis for prescribing future 
rights and obligations.” 
133.  
It is a principle of law that binding judgment, 
either of acquittal or conviction, can only be withdrawn by 
the Courts of law, therefore, the question for determination 
would be as to which forum is a ‘Court’ and which is not. 
Answer to this proposition has been given in Rehman Khan   
v.  Asadullah Khan (PLD 1983 Quetta 52). In this very 
judgment the word ‘Court’ has been defined, after a 
considerable discussion, and it has been held that “hence, the 
Courts are only such organs of the State which follow legally 
prescribed scientific methodology as to procedure and 
evidence, in arriving at just and fair conclusions. As far as the 
definition of ‘Court’ is concerned, the Hon’ble late Mr. Justice 
Zakaullah Lodhi (the then Acting CJ) concluded that “the 
Courts are only such organs of State which administer justice 
under guidance of procedural laws as to conduct of 
proceedings as well as evidence; since such methodology 
helps the Court in administering justice, in accordance with 
law, therefore, all other bodies which have a free hand in the 
matter of deciding disputes are not Courts”.  
134.  
Applying the above test on the provisions of 
Section 33F of the NAO, 1999, inserted through Section 7 of 
the NRO, 2007, relating to withdrawal or termination of cases 
Const.P.76/2007, etc. 
 
205 
or proceedings, inescapable conclusion would be that the 
legislative authority of the President had acted contrary to 
judicial norms by allowing withdrawal and termination of 
cases and proceedings. However, as noted hereinabove, that 
on the basis of judicial interaction by the Court of law, 
having jurisdiction, appropriate orders can be passed. 
135.  
Essentially withdrawal or termination of cases or 
proceedings in the manner as it has been done by means of 
contents of Section 33F of the NAO, 1999, inserted through 
Section 7 of the NRO, 2007, does not fall within the definition 
of ‘pardon’, ‘amnesty’ or ‘commutation of sentence’. As per 
the Corpus Juris Secundum,  Vol.67, ‘pardon’ and ‘amnesty’ 
has been defined as follows:- 
“Pardon.- a pardon is an executive act of grace which 
exempts and individual from the punishment the law 
inflicts for a crime, he has committed. It is full or partial 
accordingly as it absolves the recipient of all or only a 
portion of the legal consequences of his crime; and it is 
conditional or absolute accordingly as it does or does 
not make its operation or continued operation, depend 
on a condition precedent or subsequent.” 
“Amnesty.- Amnesty is an exercise of the sovereign 
power by which immunity to prosecution is granted by 
wiping out the offence supposed to have been 
committed by a group or class of persons prior to their 
being brought to trial.” 
 Who May Exercise Authority.- Under constitutional 
provisions, the granting of pardons is within the 
Const.P.76/2007, etc. 
 
206 
province of the executive department of the State or 
nation, as the case may be.  
……….……………………………………………………….. 
Legislature. As a general rule, the legislature cannot 
exercise the pardoning power where the constitution of 
the State does not confer such power on the legislature, 
but lodges it else where.”      
The expressions ‘pardon’ and ‘amnesty’ have been defined in 
Black’s Law Dictionary, 7th Edn. (1999), as under:- 
“Pardon.- The act or an instance of officially nullifying 
punishment or other legal consequences of a crime; a 
pardon is usu. granted by the chief executive of a 
government [the President has the sole power to issue 
pardons for federal offences, while State Governors 
have the power to issue pardons for State crimes].” 
“Amnesty.- A pardon extended by the Government to a 
group or class of persons, usu. for the political offences; 
the act of a sovereign power officially forgiving certain 
classes of persons who are subject to trial but have not 
yet been convicted; unlike an ordinary pardon, amnesty 
is usu. addressed to crimes against State sovereignty – 
that is, to political offences with respect to which 
forgiveness is deemed more expedient for the public 
welfare then prosecution and punishment. Amnesty is 
usu. 
general, 
addressed 
to 
classes 
or 
even 
communities.” 
 Admittedly, neither the ‘holders of public office’ have been 
pardoned nor amnesty has been given to them and similarly, 
their sentences have also not been commuted. Therefore, on 
the basis of such legislative document i.e. the NRO, 2007, 
Const.P.76/2007, etc. 
 
207 
which has no legal sanctity behind it, the benefit drawn by 
the ‘holders of public office’ is not sustainable.  
136.  
Article 5 of the Constitution in unambiguous 
terms provides that loyalty to the State is the basic duty of 
every citizen; and obedience to the Constitution and the law 
is the inviolable obligation of every citizen, wherever he may 
be and of every other person for the time being within 
Pakistan. Therefore, while promulgating the NRO, 2007, the 
President has to conform to the norms and response to the 
voice of the Constitution, as per the mandate of Article 5 of 
the Constitution and any action on his part which negates the 
dictates of the Constitution including the fundamental rights 
shall be tantamount to promulgating a law which is neither 
acceptable by the nation or internationally, being not in line 
with the dictates of the Constitution. Therefore, the President 
who is under oath to protect the Constitution in all 
circumstances is not competent to promulgate an Ordinance 
in the name of national reconciliation, which is not 
permissible under any of the legislative lists i.e. Federal or 
Concurrent, as per Fourth Schedule of the Constitution, 
perusal whereof abundantly makes it clear that no law in the 
nature of the NRO, 2007 can be promulgated which instead of 
eliminating exploitation etc. amongst the citizens, as per 
Const.P.76/2007, etc. 
 
208 
Article 3 of the Constitution, tends to perpetuate corruption 
and corrupt practices as discussed above. There is no need to 
cite any judgment in this behalf except making reference to 
the case of Ch. Zahur Ilahi   v.  Zulfikar Ali Bhutto (PLD 
1975 SC 383) to emphasize that it is the duty of every one to 
obey the Constitution.  
137.  
It is the prerogative of the Parliament or 
Provincial Assembly to promulgate laws according to their 
respective spheres allocated to them, inter alia, taking into 
consideration 
the 
provisions 
of 
Article 
227 
of 
the 
Constitution, relating to promulgation of law according to 
Islamic provisions. Sub-Article (1) of Article 227 has two 
parts; according to its first part all existing laws shall be 
brought in conformity with the Injunctions of Islam as laid 
down in the Holy Quran and Sunnah. As per its plain 
reading, it refers to the laws which were existing when the 
Constitution of Pakistan, 1973 was enforced i.e. on 14th 
August 1973. As per its second part, which commands that 
no law shall be enacted which is repugnant to such 
injunctions. Clause (2) of Article 227 of the Constitution 
provides that effect shall be given to the provisions of clause 
(1) only in the manner provided in Part-IX of the 
Constitution, thus it leads to a reference to Article 228, which 
provides for composition of Council of Islamic Ideology, to 
Const.P.76/2007, etc. 
 
209 
which a reference may be made by the Parliament, the 
President or the Governors of the Provinces on a question 
whether a proposed law is or is not repugnant to the 
injunctions of Islam, in terms of Article 229 of the 
Constitution. On receipt of such question so referred under 
Article 229 of the Constitution, the Council has to inform 
within 15 days, from the receipt of the reference, to the 
House, the Assembly, the President or the Governor, as the 
case may be, of the period within which the Council expects 
to be able to furnish that advice. Article 230 of the 
Constitution further provides that where a House, a 
Provincial Assembly, the President or the Governor, as the 
case may be, considers that, in the public interest, the making 
of the proposed law, in relation to which the question arose, 
should not be postponed until the advice of the Islamic 
Council is furnished, the law may be made before the advice 
is furnished; but at the same time it is also provided that, 
where a law is referred for advice to the Islamic Council and 
the Council advises that the law is repugnant to the 
Injunctions of Islam, the House or, as the case may be, the 
Provincial Assembly, the President or the Governor shall 
reconsider the law so made. This is how the scheme of Part 
IX of the Constitution, relating to Islamic provisions, works.  
Const.P.76/2007, etc. 
 
210 
138.  
As it has been discussed hereinabove, by making 
reference to a book tilted as “Muhammad (PBUH) 
Encyclopedia of Seerah”, that principle of equality in Islam 
is an essential requisite of justice because when there is 
discrimination and partiality between the people, there is no 
justice. A code of Allah demands absolute equality of rights 
between 
the 
people 
without 
any 
discrimination 
or 
favouritism between man and man, and man and woman, on 
any count. Therefore, without any fear of doubt, it can be 
held that Article 25 of the Constitution, namely, all citizens 
are equal before the law and are entitled to equal protection 
of law and there shall be no discrimination on the basis of sex 
alone, has its origin in Quranic injunctions. Once it has been 
held that any law is void, insofar as, it is inconsistent with or 
in derogation of fundamental rights, therefore, it would also 
be against the injunctions of Islam and no such law shall be 
enacted which is repugnant to such Injunctions.   
139.  
Thus for the foregoing reasons, we are of the 
opinion that the NRO, 2007 has been promulgated not in 
consonance with Injunctions of Islam in terms of Article 
227(1) of the Constitution. We may add a word of caution 
since there is a tendency among some litigants to invoke such 
precepts of Islam as do not have universal acceptance even 
Const.P.76/2007, etc. 
 
211 
among the jurists and schools of Islamic Sharia, or who will 
invoke, on vague and unspecific grounds, recourse to the 
morality and 
conscience 
of 
the 
Constitution 
or 
to 
international conventions. These cannot be invoked as a 
matter of course, and certainly not to strike down formal 
legislation or executive action which is otherwise found to be 
within the scope of the Constitution and the law. The 
Constitution remains supreme and the primary reason for 
striking down the NRO, 2007 has been its being ultra vires the 
express and stated provisions of the Constitution. The 
observations relating to the application of Article 227 and to 
the morality and conscience of the Constitution are only 
further supportive observations that can be construed as a 
reconfirmation of the essential and inherent invalidity in the 
light of the other express provisions contained in the 
Constitution. The Primary touchstones remain the other 
provisions of the Constitution specified in the judgment. 
140.  
This Court in more than one cases including the 
Azizullah Memon’s case (PLD 1993 SC 341), I.A. Sherwani’s 
case (1991 SCMR 1041) and Liaquat Hussain’s case (PLD 
1999 SC 504)  has held that different laws can be enacted for 
different sexes and age groups, but in the present case the 
basic question is as to the vires of the NRO, 2007 on the 
Const.P.76/2007, etc. 
 
212 
ground of being violative of Article 25 of the Constitution as 
it has provided protection to a certain class of persons against 
the crimes committed during a certain period.   
141.  
It may be noted that newly inserted Section 33F 
of the NAO, 1999, under Section 7 of the NRO, 2007, has not 
only made classification between the general public and the 
‘holders of public office’ but also amongst the ‘holders of 
public office’ on account of time period, as well, on the basis 
of which, benefit to a particular class i.e. the persons against 
whom the proceedings were initiated prior to 12th October 
1999, has been extended on the criteria that prolonged 
proceeding are pending against them. At this juncture, it may 
be noted that prior to the NAO, 1999, Ehtesab Act, 1997 was 
in field, which was repealed on the promulgation of the 
NAO, 1999, as a result whereof, the proceedings initiated 
under the said Act, were protected by means of Section 33 of 
the NAO, 1999, which provides that any and all proceedings 
pending before the Court under the Ehtesab Act, 1997 shall 
stand transferred to a Court, as soon as it is constituted under 
this Ordinance, within the same Province, and it shall not be 
necessary to recall any witness or again to record any 
evidence, that may  have been recorded. As far as Ehtesab 
Act is concerned, it was enacted on 31st May 1997 and was 
made effective w.e.f. 6th November 1990, so through the 
Const.P.76/2007, etc. 
 
213 
NRO, 2007 benefit of withdrawal or termination of the cases 
or proceedings has been extended to persons whose cases are 
covered between the period from 6th November 1990 and 12th 
October 1999. Interestingly, neither the benefit of the NRO, 
2007 has been extended to the ‘holders of public office’, 
against whom cases were registered prior to 6th November 
1990 nor to those ‘holders of public office’ against whom 
cases have been registered after 12th October 1999, although 
the cases were registered against such persons, even before 
and after these cutoff dates. Thus for this reason as well, all 
the ‘holders of public office’ against whom cases have been 
initiated before 6th November 1990 and after 12th October 
1999 are also entitled for equal protection of law because they 
are similarly placed. Therefore, on the basis of intelligible 
differentia, no distinction can be drawn between both the 
groups, as such the above sub-classification within the class 
of ‘holders of public office’ is not based on an intelligible 
differentia, having no rational nexus to the object, sought to 
be achieved by the relevant classification under the NRO, 
2007 as such, it, being a discriminatory law, deserves to be 
declared void ab initio [I.A. Sherwani’s case (1991 SCMR 
1041)]. 
142.  
It is also contended with vehemence by the 
petitioner’s counsel, particularly Mr. Abdul Hafeez Pirzda 
Const.P.76/2007, etc. 
 
214 
and Mr. A.K. Dogar, learned Advocates that the NRO, 2007 
was promulgated against the morality and the conscience of 
the Constitution. To elaborate their argument, they relied 
upon R.S. Jhamandas’ case (PLD 1966 SC 229), Benazir 
Bhutto’s case (PLD 1988 SC 416) and D.S. Nakara’s case  
(AIR 1983 SC 130).  
143.   
It is a universally accepted principle that 
Constitution of the country, may be written or otherwise, 
represents the voice of the people. The Constitution being a 
supreme law of the country provides for guarantee of peace, 
welfare and amity of the people, subject to their rights and 
obligations, against all forms of exploitation, socio-economic 
justice and principles of good governance, transformed in the 
principles of policy, to make the document as a living 
instrument, sufficient to cater for the present and future 
requirements of a nation. An instrument like the Constitution 
of 1973, to achieve the objects spelt out in the preamble, has 
the support of 176 million people, meaning thereby that this 
instrument has on its back moral strength of the nation, 
therefore, it would be their earnest desire and wish that 
everyone must show loyalty to the State and obedience to the 
Constitution and the law, as it has been envisaged under 
Article 5 of the Constitution. This object can be achieved if 
the moral or ethical values, the desires of the nation, have 
Const.P.76/2007, etc. 
 
215 
been transformed into a legally enforceable formulation. In 
instant case the Parliamentarians i.e. the representatives of 
the people of Pakistan, by their high moral conduct have 
already demonstrated, by not allowing the NRO, 2007 to 
become the Act of the Parliament, as manifested from the 
proceedings 
of 
the 
National 
Assembly, 
referred 
to 
hereinabove, as well as by the act of the Federal and 
Provincial Governments of not defending and supporting it. 
As it has been discussed earlier that will of the people of 
Pakistan was not included in the promulgation of the NRO, 
2007 because despite availability of the National Assembly 
the same was not placed before it as the then legislative 
authority, being holder of highest office under the 
Constitution, is presumed to know that it is a legislation 
which is being promulgated against the conscience of the 
Parliamentarians representing the people of Pakistan and 
inconsistent with the constitutional provisions discussed 
hereinabove, including Article 63(1)(h) of the Constitution, 
which provides for disqualification of a person from being 
elected or chosen as, and from being, a member of the 
Parliament, if he has been convicted by a Court of competent 
jurisdiction on a charge of corrupt practices, moral turpitude 
or misuse of power or authority under any law for the time 
being in force. The Constitution has its own conscience being 
Const.P.76/2007, etc. 
 
216 
a living document, therefore, any law which negates any of 
the constitutional provisions shall be considered to be 
inconsistent with it. In R.S. Jhamandas’s case (PLD 1966 SC 
229), this Court being conferred with the powers of judicial 
review in the orders passed by Land Commissioner under 
para 27 (1) of the West Pakistan Land Reforms Regulation, 
1959 overruled the objection and observed that “what is hit is 
something which in the terms of the present Constitution, may well 
be described as the constitutional conscience of Pakistan”. This 
judgment supports the arguments that any law which is not 
promulgated in accordance with the Constitution would be 
considered against its conscience. As far as the question of 
morality is concerned, it has already been discussed 
hereinabove. However, note of it was also taken by this 
Court in Benazir Bhutto’s case (PLD 1988 SC 416) while 
examining the implications of Article 17(1) of the 
Constitution. An elector, while exercising his right of 
franchise, confers/places trust upon the representative, being 
chosen by him. If such representative betrays his trust by 
involving himself into corruption or the offence of moral 
turpitude, he disqualifies himself to continue as a member of 
the Parliament, according to the guidelines provided in 
Article 63(1)(h) of the Constitution. It is also to be noted that 
plain reading of Article 63(1)(h) of the Constitution reveals 
Const.P.76/2007, etc. 
 
217 
that it introduces two types of situation; one disclosing 
disqualification qua a candidate to become a member of the 
Parliament and; second disqualification qua the elected 
member of the Parliament.  
144.  
It may be noted that Section 33F(1) in the NAO, 
1999, inserted through Section 7 of the NRO, 2007, giving it 
overriding effect, by using  non abstante clause, has allowed 
the prolonged pending proceedings to be withdrawn with 
immediate effect. In Black’s Law Dictionary, 7th Edn. (1999) 
word ‘proceeding’ has been defined as follows:- 
“(1) the regular and orderly progression of a law suit, 
including all acts and events between the time of 
commencement and the entry of judgment. (2) any 
procedural means for seeking redress from a tribunal 
or agency. (3) an act or step that is part of a larger 
action. (4) the business conducted by a Court or other 
official body; a hearing.  …………” 
 
As per the above definition, the cases or proceedings have 
been withdrawn or terminated contrary to law, as it has been 
discussed hereinabove, initiated before 12th October 1999, 
including pending trial proceedings, conviction/acquittal 
appeals, etc., inasmuch as the transfer of pending 
proceedings under Section 33 of the NAO, 1999 have also 
been withdrawn or terminated. The manner in which Section 
33F of the NAO, 1999, has been couched, suggests that the 
Const.P.76/2007, etc. 
 
218 
‘holders of public office’ involved in any proceedings, not 
only under the NAO, 1999 but also in the cases under other 
laws i.e. Pakistan Penal Code, Anti-Terrorism Act, etc. have 
been withdrawn or terminated, considering the ‘holders of 
public office’ as a distinct class from the accused/convicts 
against whom similar proceedings are pending in any Court, 
with immediate effect. How the Constitution, as per its 
conscience coupled with morality, can allow this Court to 
maintain a law which is against all the norms of justice. As 
explained above, two things have become very significant; 
one is category of cases, initiated on a reference by the NAB 
inside or outside Pakistan and; second is that of the cases 
under any other law, for the time being in force covering all 
nature of crimes, heinous or minor. It may be noted that a 
‘holder of public office’ when enters into Parliament, he 
enjoys moral authority as he has been elected by the 
constituents, enjoying their trust. But a ‘holder of public 
office’ whose case falls under disqualification prescribed in 
Article 63(1)(h) of the Constitution, which includes 
conviction by a Court of competent jurisdiction, on the 
charge of corrupt practices under Section 9 of the NAO, 1999, 
identifies persons, who are said to have committed the crime 
falling under this category. Second charge which falls under 
the definition of disqualification under Article 63(1)(h) of the 
Const.P.76/2007, etc. 
 
219 
Constitution is in respect of moral turpitude. The expression 
‘moral turpitude’ has not been defined under the 
Constitution, however, in Black’s Law Dictionary, 6th Ed. its 
definition as under:- 
“The act of baseness, vileness or the depravity 
in private hand social duties which man owes to his 
fellow man, or to society in general, contrary to 
accepted and customary rule of right and duty 
between man and man. Act or behaviour that gravely 
violates moral sentiment or accepted moral standards 
of community and is a morally culpable quality held 
to 
be 
present 
in 
some 
criminal 
offences 
as 
distinguished from others. The quality of a crime 
involving grave infringement of the moral sentiment 
of the community as distinguished from statutory 
mala prohibita.” 
Similarly, in Webster Dictionary, the term ‘moral turpitude’ 
has been defined as “an act or behaviour that gravely violates 
moral 
sentiment 
or 
accepted 
moral 
standards 
of 
community.” In Law Lexicon by P. Remnatha Aiyar Vol.III, 
3rd Ed. (2005), the term ‘moral turpitude has been defined as 
under:- 
“Anything 
done 
contrary 
to 
justice, 
honesty, 
principle, or good morals; an act of baseness, vileness 
of depravity in private and social duties which a man 
owes to his fellowmen, or to society in general, 
contrary to accepted and customary rule of right and 
duty 
between 
man 
and 
man. 
……………….. 
Const.P.76/2007, etc. 
 
220 
Everything 
done 
contrary 
to 
justice, 
honesty, 
modesty, or good morals is done with turpitude, so 
that embezzlement involves moral turpitude.” 
Likewise, in Corpus Juris Secundum, Vol.1, 8th Ed. the term 
‘moral turpitude’ has been defined as under:- 
“ ‘moral turpitude’ is not a new term, but, rather, 
it is a term which is old in the law, and which has 
been used in the law for centuries. It is a term 
which has been the subject of many decisions and 
which has been much defined by Courts. 
……………..” 
 
145.  
Third category relates to the cases of misuse of 
power or authority under any law for the time being in force. 
This category also squarely falls within the definition of 
corruption and corrupt practices as defined in Section 9 of 
the NAO, 1999.  
146.  
Thus question arises, whether a law which 
instead of eliminating, has encouraged the offence of 
corruption and moral turpitude, can at all not be enacted in 
exercise of powers under Article 89 of the Constitution; 
whether promulgation of such a law would not be against 
the morality and the conscience of the Constitution; whether 
the constituents, in exercise of their right of franchise, have 
not made out a case to strike down such a law, which is not 
only contrary to the constitutional provisions, discussed 
Const.P.76/2007, etc. 
 
221 
hereinabove, but also calls upon this Court to strike down 
such law as they believe that on account of their high moral 
and ethical codes, it has become their enforceable legal 
formulations [D.S. Nakara’s case (AIR 1983 SC 130)]; and 
lastly whether it is not against the conscience of the 
Constitution which prohibits enactment and promulgation of 
any law inconsistent with its provisions. Answer to all above 
questions is in affirmative and could not be else.  
147.  
It is mentioned in Section 33F of the NAO, 1999 
inserted by means of Section 7 of the NRO, 2007 that ‘holders 
of public office’ shall also not be liable for any action in 
future as well for acts having been done in good faith before 
the said date. This immunity from future actions has also 
been provided contrary to the Constitution and the law. 
There are two provisions in the Constitution i.e. Article 12, 
according to which protection to a person against 
retrospective punishment has been made permissible; and 
Article 13, which protects a person against double 
punishment and self-incrimination. Thus, operation of 
Section 33F of the NAO, 1999, inserted through Section 7 of 
the NRO, 2007 seems  to be in  contravention to the mandate 
of Section 31B of the NAO, 1999, which provides mechanism 
for withdrawal from the prosecution of any accused person 
in the manner prescribed therein, but as far as the protection 
Const.P.76/2007, etc. 
 
222 
against double punishment is concerned, it would only be 
available to a person who has already been punished but 
criminal proceeding right from the date of commencement 
up to final judgment has been withdrawn or terminated, 
making such a person as innocent, as he was before initiation 
of such proceedings at investigation stage. So far as Article 13 
of the Constitution is concerned, no case can be made out 
under this Article of the Constitution against double 
punishment or self incrimination. It seems that the ‘holders 
of public office’ have been saved from future action for the 
crimes committed by them as well as the crimes charged 
against them on the basis of reference filed by the NAB 
including corruption and corrupt practices. Neither the 
Constitution nor any other law permits the legislative 
authority i.e. the President to promulgate a law, which fails 
to stand the test of Articles 12 and 13 of the Constitution.  
148.  
By promulgation of the NRO, 2007, the ‘holders 
of public office’ have been saved from being charged of 
certain acts committed by them in good faith. Essentially, 
Section 33F of the NAO, 1999, inserted through Section 7 of 
the NRO, 2007, in generality, is dealing with the persons, 
facing criminal charges under any provision of law or the 
crime defined under the NAO, 1999. As far as the last 
Const.P.76/2007, etc. 
 
223 
mentioned law is concerned, under it no exception has been 
created for the crimes committed under good faith except 
under some of the provisions of PPC, whereby protection has 
been given for committing an act in good faith. Section 52 of 
PPC defines the expression ‘good faith’ as ‘nothing is said to 
be done or believed in ‘good faith’, which is done or believed 
without due care and attention’. In Black’s Law Dictionary, 
7th Edn. (1999), the expression ‘good faith’ has been defined 
as ‘a state of mind consisting in (1) honesty in belief or 
purpose, (2) faithfulness to one’s duty or obligation, (3) 
observance of reasonable commercial standards of fair 
dealing in a given trade or business or (4) absence of intent to 
defraud or to seek unconscionable advantage – also termed 
bona fide”. In Industrial Development Bank of Pakistan   v.  
Saadi Asamatullah (1999 SCMR 2874), the expression ‘good 
faith’ has been defined as ‘an act is said to be done in good 
faith when it is done with due care and attention’. Similarly 
in Fazal Ullah Siddiqui   v.  State (2006 SCMR 1334), it has 
been held that ‘nothing done without due care and caution 
can be accepted as having been done in good faith’.  
149.       
It may also be noted that a public servant 
performing duty on behalf of State has been provided 
immunity in different statutes with reference to the nature of 
the crime etc. This expression has been used in Section 36 of 
Const.P.76/2007, etc. 
 
224 
the NAO, 1999, which provides that no suit, prosecution, or 
any other proceedings shall lie against the Federal 
Government, Provincial Government, Chairman NAB, or any 
other member of the NAB or any person exercising any 
power or performing any function under this Ordinance or 
the Rules made under it for any act or thing, which has been 
done in good faith or intended to be done under this 
Ordinance or the rules thereof. As far as the persons against 
whom proceedings or investigation are pending before the 
Court of law including a High Court or Supreme Court, 
cannot be said to have committed the crime, in good faith, 
either heinous or minor in nature, as well as relating to 
corruption or corrupt practices, inside and outside the 
country. The legislature while enacting a law has to adopt 
certain measures before extending immunity to the 
functionaries of the State but at least we can say that an 
accused or convict cannot enjoy protection for offences, noted 
hereinabove, or for his deeds, in the garb of good faith.  
150.  
Another important aspect of Section 7 of the 
NRO, 2007 is that while inserting Section 33F in the NAO, 
1999, a mechanism has also been provided for ‘withdrawal 
and termination of prolonged pending proceedings, initiated 
prior to 12th October, 1999’. One of the so-called reasons, 
prevailed upon the legislative authority to promulgate such 
Const.P.76/2007, etc. 
 
225 
provision on account of ‘prolonged pending proceedings 
initiated prior to 12th October 1999’. It may be noted that in 
the preamble of the NRO, 2007, besides other things, the 
prolonged pending proceedings was never the consideration. 
It does not seem to be that on account of prolonged pending 
proceedings, initiated prior to 12th October 1999, the cases 
have been withdrawn as according to it, necessity to 
promulgate the NRO, 2007 is “to promote national 
reconciliation, foster mutual trust and confidence amongst 
‘holders of public office’ and to remove the vestiges of 
political vendetta and victimization, to make the election 
process more transparent and to amend certain laws for that 
purpose and for matters connected therewith and ancillary 
thereto”. Assuming that the conditions so mentioned therein 
for 
terminating 
the 
cases 
being 
prolonged 
pending 
proceedings is acceptable, then why the cases which have 
been finalized, resulting in the conviction or acquittal and 
proceedings in respect thereof were pending, have been 
withdrawn. 
Therefore, 
instead 
of 
withdrawing 
or 
terminating the proceedings, mechanism should have been 
followed for the disposal of cases by increasing manpower of 
investigating agencies and the number of Courts etc. In 
Liaquat Hussain’s case (PLD 1999 SC 504), somehow 
identical objection was raised on the creation of Military 
Const.P.76/2007, etc. 
 
226 
Courts and this Court while disposing of the matter, 
provided a mechanism to monitor the proceedings with a 
view to ensure expeditious disposal of cases pending in 
Courts. 
Relevant 
para 
therefrom 
has 
already 
been 
reproduced hereinabove. In addition to it, prolonged 
pending proceedings, in no way, can constitute a ground for 
the withdrawal or termination of the proceedings, in view of 
discussion made hereinabove elaborately. More so, Article 37 
of the Constitution casts a duty upon the State to ensure 
inexpensive 
and 
expeditious 
justice, 
therefore, 
the 
Government by invoking this provision can increase the 
number of Courts and paralegal staff to ensure expeditious 
disposal of the cases of persons charged for various offences.  
151.   
This Court while interpreting different provisions 
of the Constitution has an authority to make an observation 
with an object that the State must realize its duty. As in the 
case in hand, the Court is empowered to pass appropriate 
orders, as it deemed fit under Article 187 of the Constitution 
as well as keeping in view the earlier precedents providing 
for monitoring of the cases pending in the Courts and the 
increase in number of Courts. As far as the supervision of the 
High Court is concerned, it has already been discussed 
hereinabove and for comprehending powers of this Court 
under Article 187 of the Constitution, reference can be made 
Const.P.76/2007, etc. 
 
227 
to Sabir Shah’s case (PLD 1995 SC 66). In this case, Chief 
Justice Sajjad Ali Shah (as he then was) while discussing the 
powers of this Court, observed as under:- 
“22. 
In support of the proposition that this Court 
has more than ample powers to do complete justice, 
as 
contemplated 
under 
Article 
187 
of 
the 
Constitution, reference can be made to Order XXIII 
Rule 6 of the Supreme Court Rules, 1980, which also 
provides that nothing in these Rules shall be deemed 
to limit or otherwise affect the inherent powers of the 
Court to make such orders as may be necessary for 
the ends of justice or to prevent the abuse of the 
process of the Court. This rule is consistent with the 
spirit and amplitude of the jurisdiction and power as 
conferred upon it by the Constitution.” 
Likewise, Justice Saleem Akhtar (as he then was) observed as 
under:- 
“10. The Supreme Court is the apex Court. It is the 
highest 
and 
the 
ultimate 
Court 
under 
the 
Constitution. In my view the inherent and plenary 
power of this Court which is vested in it by virtue of 
being the ultimate Court, it has the power to do 
complete justice without in any manner infringing or 
violating any provision of law. While doing complete 
justice this Court would not cross the frontiers of the 
Constitution and law. The term "complete justice" is 
not capable of definition with exactitude. It is a term 
covering variety of cases and reliefs which this Court 
can mould and grant depending upon the facts and 
circumstances of the case. While doing complete 
justice formalities and technicalities should not fetter 
its power. It can grant ancillary relief, mould the 
Const.P.76/2007, etc. 
 
228 
relief within its jurisdiction depending on the facts 
and circumstances of the case, take additional 
evidence and in appropriate cases even subsequent 
events may be taken into consideration. Ronald 
Rotunda in his book "Treatise on Constitutional Case 
Substance" (Second-Edition), Volume 2 at page 90 has 
stated that "The Supreme Court is an essence of a 
continual Constitutional convention". The jurisdiction 
and the power conferred on the Supreme Court does 
empower it to do complete justice by looking to the 
facts, circumstances and the law governing a 
particular case. Article 187 does not confer any 
jurisdiction. It recognises inherent power of an apex 
Court to do complete justice and issue orders and 
directions to achieve that end. Inherent justification is 
vested in the High Court and subordinate Courts 
while dealing with civil and criminal cases by virtue 
of provisions of law. The inherent jurisdiction of this 
Court to do complete justice cannot be curtailed by 
law as it may adversely affect the independence of 
judiciary and the fundamental right of person to have 
free access to the Court for achieving complete 
justice. This enunciation may evoke a controversy 
that as Article 175(2) restricts Article 187 it will create 
conflict between the two. There is no conflict and 
both the Articles can be read together. The conflict in 
the provisions of the Constitution should not be 
assumed and if apparently there seems to be any, it 
has to be interpreted in a harmonious manner by 
which both the provisions may co-exist. One 
provision of the Constitution cannot be struck down 
being in conflict with the other provision of the 
Constitution. They have to live together, exist 
together anti operate together. Therefore, while 
Const.P.76/2007, etc. 
 
229 
interpreting jurisdiction and power of the superior 
Courts one should look to the fundamental rights 
conferred and the duty cast upon them under the 
Constitution. A provision like Article 187 cannot be 
read in isolation but has to be interpreted and read 
harmoniously 
with 
other 
provisions 
of 
the 
Constitution. In my humble view this Court while 
hearing appeal under a statute has the jurisdiction 
and power to decide the question of vires of the 
statute under which the appeal has arisen  and can 
even invoke Article 184(3) in appropriate cases.” 
 
152.  
It is worth to mention here that by means of 
Section 33F of the NAO, 1999, inserted through Section 7 of 
the NRO, 2007, cases or proceedings have been withdrawn or 
terminated, without spelling out the reasons, namely, as to 
whether an accused himself is responsible for causing the 
prolonged delay or the prosecution or the Courts have failed 
to decide the case expeditiously. After the promulgation of 
National Judicial Policy, 2009 by the National Judicial Policy 
Making Committee, despite strict monitoring of the 
proceedings of the Court, we have observed that the Courts 
and the Investigating Agencies are taking all necessary steps 
to dispose of the cases expeditiously according to law but it is 
a hard fact that accused, for one or other reasons, known to 
them, attempt to protract the proceedings. 
Const.P.76/2007, etc. 
 
230 
153.   
By means of Section 3 of the NRO, 2007, 
amendment 
has been made in Section 39 of the 
Representation of the People Act, which reads as under:-  
“3. Amendment of section 39, Act LXXXV of 1976. 
(1) In the Representation of the People Act, 1976 
(LXXXV of 1976), in section 39, after sub-section (6), 
the following new sub-section (7) shall be added, 
namely:-  
“(7) After consolidation of results the Returning 
Officer shall give to such contesting candidates 
and their election agents as are present during 
the consolidation proceedings, a copy of the 
result of the count notified to the Commission 
immediately against proper receipt and shall 
also post a copy thereof to the other candidates 
and election agents.” 
 
 
Intention enshrined in above said Section cannot be doubted 
but it seems that this provision is cosmetic in its nature, 
comparing to Sections 2, 6 and 7 of the NRO, 2007. However, 
the benefit of the same cannot be drawn immediately by a 
candidate, who is always interested to get the certified copy 
of the result and such arrangement is already available in 
Section 38 of the Representation of the People Act, 1976, 
which provides that the Presiding Officer shall give a 
certified copy of the statement of count and the ballot paper 
account to such of the candidates,  their election agents or 
polling agents as may be present and obtain a receipt for 
such copy because as far as the consolidation of a result is 
concerned, it takes place subsequent to polling day, as per 
Const.P.76/2007, etc. 
 
231 
the schedule fixed by the Election Commission. If at all, the 
intention of the legislature was to ensure transparent election 
free from rigging of any kind, then emphasis should have 
been for the strict compliance of Section 38 (11) of the 
Representation of the People Act, 1976, which reads as 
under:- 
“38. Proceedings at the close of poll .- 
……………………………………………………… 
…………………………………………………….... 
(11) The Presiding Officer shall give a certified copy of 
the statement of the count and the ballot paper account 
to such of the candidates, their, election agents or 
polling agents as may be present. 
……………………………………………………… 
……………………………………………………....” 
 
154.  
Mr. Shaiq Usmani, learned Amicus curiae started 
his arguments by saying that he would draw the canvas 
before the Court, which is necessary to be seen, that what 
possible arguments could be raised in defence of the NRO, 
2007 by the other side. He argued that in criminal justice 
system, there are two systems of justice; one is retributory 
and the other is restorative; first one entails prosecution and 
punishment, just very simple, whereas restorative does not 
believe in prosecution or punishment rather it tries to resolve 
the issues through accountability. According to him if, 
presumably, it was an act of amnesty by means of the NRO, 
2007, then the question arises whether it was legitimate and if 
so, could it justify the derogation from the fundamental 
Const.P.76/2007, etc. 
 
232 
rights. He added that amnesty is manifestation of restorative 
justice and is resorted to, with a view to end the internal 
conflict on the basis of negotiation with the leaders, who 
committed the crimes, either political or the other. He stated 
that there are two further types of amnesties; one is 
compromised by the two parties for their mutual interest; 
and other is accountable amnesty where there is open 
admission of guilt, because victims do not, necessarily, 
always want punishment, but certainly want the admission 
of guilt. According to his version, the only legitimate 
amnesty is the one which is accountable, so in the case in 
hand, the amnesty, if it could be called as amnesty, is not a 
legitimate one, hence not permissible; therefore, on this 
ground, too, it falls. He further stated that the NRO, 2007 is 
violative of Article 25 of the Constitution on the ground of 
discrimination because on the face of it, it is discriminatory; 
therefore, looking at the I.A. Sherwani’s case (1991 SCMR 
1041) there was a definite classification of people. He argued 
that the NRO, 2007 is violative of the salient features of the 
Constitution and principle of trichotomy of powers, as it is 
the domain of the judiciary to see whether a criminal case 
should be withdrawn or not, inasmuch as there is 
encroachment upon the domain of judiciary, which is 
certainly violative of the principle of trichotomy of powers, 
Const.P.76/2007, etc. 
 
233 
as such it is void. He strenuously argued that corruption is 
nothing but theft of public money; when the National 
Assembly cannot make a law to condone theft, how can the 
President issue an Ordinance to condone theft. While 
referring to Section 21 of the NAO, 1999, he argued that 
Attorney General has no power at all to withdraw the cases; 
therefore, anything done by the then Attorney General, is of 
no consequences.  
155.  
The above arguments of the learned Amicus 
Curiae have been considered and need no further 
deliberations being comprehensive in their form,  in view of 
above discussion on different aspects of the case noted in the 
forgoing paras.  
156.  
Mian Allah Nawaz, another learned Amicus 
Curiae submitted his formulations on the NRO, 2007 by 
saying that man is a complex, complicated in it; there is no 
definition of man; even the Allah Almighty has said that the 
creation, which is being sent to this globe, is flawed, and is a 
blend of two great positive and negative reservoirs of 
instincts; one instinct is goodness, the good, the tranquility, 
peace; and the other is greed, lust, bloodshed etc.; so the man 
is beautiful combination of both. He quoted the saying of 
Jeremy Bentham, a great philosopher, that ‘if you keep twenty 
Const.P.76/2007, etc. 
 
234 
wolfs at one place and twenty men at the same place, it would be 
difficult to manage the men’. According to him another 
philosopher has rightly said that ‘law is necessity of the man’ 
because he can’t discipline himself; he can’t undertake his 
own examination; man is such a creature that he needs three 
instincts, i.e. instinct of preservation, instinct of peace and the 
instinct of law, which compel him to travel on the path of 
law. He added that laws are those minimum requirements, 
patterns, modes; which if recognized, each man will be saved 
from the warring, lust and greed; and this is beginning of the 
law. According to him law is not necessarily be a divine law, 
it may be a temporal law and it may be a secular law but 
whatever it is, the main thing is that it is for the peace, 
tranquility and goodness. He stated that any law, which 
violates the ‘intrinsic value of the law’ or ‘intrinsic value of 
behaviour’, is not a good law, and it has to be struck down 
otherwise it would create simple anarchy, lust, greed and 
would lead to monumentally horrendous things. He argued 
that if the basic fundamental philosophy of law was not kept 
in view, neither the Constitution nor the law or the problem 
facing the nation could be understood and no solution could 
be found. In this behalf he referred to Surah Al-Baqarah from 
the Holy Quran.  According to him the morality of law has 
Const.P.76/2007, etc. 
 
235 
two aspects to be assumed as sine qua non; one is internal 
voice of a human being and the other is external voice i.e. 
conduct of a human being; these two can be called as a soul, 
conscience, discipline, etc. of human being; as the same are 
contemporaneous not simultaneous; naturally embodied in 
the human being, who is to be tested on these touchstones. 
157.  
With regard to NRO, 2007, he stated that the 
NRO, 2007 is not only a bad law but it’s a dirty law, a 
kleptocratic law, which converts the very form of the 
Government. While explaining the word ‘kleptocracy’, he 
stated that it is a classical manifestation of evolution of 
gradual supremacy of satanic forces. He further stated that 
there is not a single provision in the Constitution, validating 
the NRO, 2007 or giving a conscience to it under any statute, 
because our Constitution is based upon morality of Muslims. 
According to him the NRO, 2007, from the beginning to end, 
after preamble, is a master piece of savagery, therefore, from 
the commencement to finish, irrespective of certain cosmetic 
provisions, it is a so bad law that it must be struck down, as a 
piece of paper, which never deserved to be put on the statute 
book.  
Const.P.76/2007, etc. 
 
236 
158.  
The above arguments of the learned amicus 
curiae are self-explanatory; therefore, there is no need to 
further dilate upon them.  
159.  
Mr. M. Sardar Khan, learned amicus curiae, made 
his submissions to the effect that the NRO, 2007 is not only 
discriminatory and inconsistent with fundamental rights, 
enshrined in Article 25 of the Constitution but also in conflict 
with other Articles of the Constitution such as Articles 62, 63 
and 175, therefore, it is not a valid law rather it is a bad law. 
According to him Article 5 of the Constitution postulates that 
it is inviolable obligation of every citizen to obey the 
Constitution and the law, whereas, Article 8 (2) prohibits the 
State from making any law which takes away or abridges 
fundamental rights conferred by the Constitution; therefore, 
if a law does so, then it shall be void, as such,  the NRO, 2007, 
so promulgated, seems to be an intentional violation and 
disobedience of the Constitutional provision, contained in 
Article 8 of the Constitution. He further contended that 
Article 2A of the Constitution requires that the authority of 
Allah Almighty, conferred upon the chosen representatives 
of the people of Pakistan, is to be exercised by them in 
accordance with the Constitution and within the limits 
Const.P.76/2007, etc. 
 
237 
prescribed by Allah Almighty. According to him various 
provisions of the NRO, 2007 i.e. 2, 3, 4, 6 & 7, are not valid 
provisions as they are void for various reasons, including, 
being against the Injunction of Islam, violative of the 
mandate of Article 175 of the Constitution, and repulsive to 
the provisions of Article 62 & 63 of the Constitution. He 
argued that the object of this law, for all intents and 
purposes, does not seem to be ‘reconciliation’ but it paves the 
way and facilitates to those, charged with corruption and 
corrupt practices, plundering of national wealth and fraud, to 
come back, seize and occupy echelons of power again; its aim 
seems to be to legalize corruption and the crimes committed 
by those in power, in the past. He further argued that Courts 
have been deprived, by virtue of this law, from their judicial 
functions by conferring powers to the administrative 
authority. He contended that the NRO, 2007, besides being 
discriminatory, has also been applied discriminately.  
160.  
With regard to Article 247 of the Constitution, 
learned counsel contended that this Court has always 
favoured application of fundamental rights to ensure that 
there should not be any discrimination amongst citizens and 
the State shall not make any law which takes away or 
Const.P.76/2007, etc. 
 
238 
abridges the rights so conferred. In this behalf he relied upon 
the case of Government of NWFP   v.  Muhammad Irshad 
(PLD 1995 SC 281), wherein Regulation No. I of 1975 dated 
26th July 1975, known as Provincially Administered Tribunal 
Areas Criminal Laws (Special Provisions) Regulation, 1975 
was declared void, being inconsistent with the fundamental 
rights guaranteed under Article 25 of the Constitution. On 
the arguments that under Article 8(1) of the Constitution, 
examination of Regulation, framed by the President or the 
Governor in exercise of powers under sub-Articles (4) and (5) 
of Article 247 of the Constitution, is not included in the 
expression ‘any law’, this Court maintained the judgment of 
the High Court, in the following terms:- 
“20. It seems difficult to subscribe to the view canvassed 
by Mr. Samadani that the expression `any law' as used 
in Article 8(1) does not encompass a Regulation made 
under Article 247(4) or that the term `State' as occurring 
in Article 7 does not include the President and the 
Governor. Article 8(1), ibid, reads as follows: 
"Any law, or any custom or usage having the 
force of law, in so far as it is inconsistent with 
the rights conferred by this Chapter, shall, to the 
extent of such inconsistency, be void." 
The word `any' is ordinarily used to enlarge the 
amplitude of the term to which it is attached and there 
seems to be no reason why the expression `any law' as 
occurring in Article 8(1) be so narrowly construed as to 
Const.P.76/2007, etc. 
 
239 
exclude from its purview a Regulation which possessed 
the efficacy of law in a part of Pakistan, particularly 
when its effect has been extended to all customs and 
usages which have the force of law. Article 7 falls in 
Part II of the Constitution which bears the rubric 
Fundamental Rights and Principles of Policy. The said 
Article reads as follows: 
"7. Definition of the State.- In this Part, unless the 
context otherwise requires, `the State' means the 
Federal Government, Majlis-e-Shoora (Parliament), a 
Provincial Government, a Provincial Assembly, and 
such local or other authorities in Pakistan as are by 
law empowered to impose any tax or cess." 
It will be noticed that the definition of the `State' as 
given in this Article is fairly wide; on its plain reading it 
would appear to encompass all authorities which 
perform executive and legislative functions in any part 
of the country. So far as the Areas are concerned, the 
President and the Governor while exercising their 
powers under Article 247 stand in the position of the 
Federal and the Provincial Governments. There is 
therefore no reason why they should be excluded from 
the definition of the `State' so far as the Areas are 
concerned. In fact, to hold otherwise, would tend to 
deprive a sizeable part of the Pakistan citizenry of the 
Fundamental Rights enshrined in the Constitution 
which could never have been the intention of the 
Constitution-makers.” 
 
161.  
Learned counsel, while heavily relying upon the 
above judgment, stated that this Court has not shown any 
flexibility, while interpreting constitutional provisions, 
dealing with the case pertaining to Tribal Area, where the 
Const.P.76/2007, etc. 
 
240 
President and the Government have dominating authority to 
issue regulation, then as to why not the NRO, 2007 be 
declared ultra vires to the Constitution, void ab initio and of 
no consequences for the reason discussed hereinabove.  
162.  
We are in agreement with the above arguments of 
the learned counsel. 
163.  
Raja Muhammad Ibrahim Satti, learned counsel 
appearing in Civil Appeal No. 1094 of 2009, however, 
supported the NRO, 2007 for the following reasons :- 
i) 
On 12th October 2007, while admitting the 
Constitution Petition, challenging the NRO, 
2007, its operation was not suspended, 
therefore, presumably it was a good law.  
ii) 
On 27th February 2008, order dated 12th 
October 
2007 
was 
modified 
without 
declaring the NRO, 2007 ultra vires the 
Constitution, as such presumably the NRO, 
2007 is a valid law.  
iii) 
The President, in exercise of powers under 
Article 89 of the Constitution, on having 
been 
satisfied 
that 
the 
circumstances 
prevailed for issuing the NRO, 2007, 
exercises his authority with immediate 
effect and it is no body’s case that the NRO, 
2007 has been issued by the President in 
exercise of powers, beyond the scope of the 
Const.P.76/2007, etc. 
 
241 
Constitution, therefore, it being a valid law 
deserves to continue.  
iv) 
The 
NRO, 
2007 
along 
with 
other 
Ordinances was not declared ultra vires the 
Constitution at the time of examination of 
the validity of Proclamation of Emergency 
of 2007 and Provisional Constitution Order, 
2007  by this Court in Sindh High Court 
Bar Association’s case (PLD 2009 SC 879), 
as by extending its constitutional life, it was 
sent to the Parliament for examination and 
making it an Act of the Parliament, 
therefore, it may be presumed that this 
Court having ample powers, refused to 
exercise the same for declaring the NRO, 
2007  ultra vires the Constitution.  
v) 
Appellant is entitled for the same relief, 
which 
has 
been 
extended 
to 
the 
beneficiaries, between the period from 5th 
October 2007 to 1st February 2008, so that he 
is not discriminated. 
164.   
As far as the reference of the learned counsel for 
the appellant to order dated 12th October 2007 is concerned, 
on this date notice was issued to the respondents and while 
examining the request of the counsel for the petitioners for 
suspending the operation of the NRO, 2007, it was observed 
that “ordinarily the provisions of a law cannot be suspended 
because this Court can only suspend a particular order, judgment 
Const.P.76/2007, etc. 
 
242 
or action, etc.; 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. Therefore, the 
argument of the learned counsel is of no help to him.  
165.  
Next crucial date pointed out by the learned 
counsel is 27th February 2008, when order dated 12th October 
2007 was modified, which does not mean that the law has 
been validated. In addition to it, it may be stated that the 
appellant Fazal Dad Jat was not a party in those proceedings, 
therefore, this argument has no substance.  
166.  
So far as the argument of the learned counsel 
regarding referring of the NRO, 2007 along with other 
Ordinances to the National Assembly in the case of Sindh 
High Court Bar Association’s case (PLD 2009 SC 879),  is 
concerned, reasons in this behalf have already been explicitly 
explained therein and discussion in this regard had already 
taken place hereinabove, whereby, it has been held that this 
Const.P.76/2007, etc. 
 
243 
Court believes in trichotomy of powers, therefore, instead of 
examining 
the 
constitutionality 
of 
such 
Ordinances, 
including the NRO, 2007, for the detailed reasons, mentioned 
in the judgment, the Ordinances along with the NRO, 2007 
were sent to the National Assembly for examination. It is an 
admitted fact that the National Assembly had not made the 
NRO, 2007 as an Act of the Parliament, although it was 
tabled before it; therefore, the argument of the learned 
counsel that its constitutionality being inapt is not acceptable.  
167.  
As far as the question of extending relief under 
the NRO, 2007 to the appellant and the convicts, who have 
filed applications being Human Right Case Nos. 14328-P to 
14331-P & 15082-P of 2009, is concerned, it is to be observed 
that it depends upon the final verdict about the 
constitutionality of the NRO, 2007.  
168.   
Now turning towards the arguments of the 
learned counsel about the Ordinance issuing powers of the 
President, there is no denial to it, but subject to discussion 
made hereinabove on this subject.  
169.  
It may be noted that the President has an 
authority under Article 89 of the Constitution to promulgate 
an Ordinance, but cannot issue temporary legislation, which 
Const.P.76/2007, etc. 
 
244 
the Parliament is not empowered to do. A thorough perusal 
of the Federal and the Concurrent Lists persuades us to hold 
that the President was not empowered to issue the NRO, 
2007 as the subjects covered by its Section 2, 6 and 7 fall 
beyond the scope of these lists. As far as its manifestations is 
concerned, it has already been done by the Parliament before 
whom the NRO, 2007 was placed, but the same was 
withdrawn subsequently under Rule 139 of the Rules of 
Procedure and Conduct of Business in the National 
Assembly, 2007, as impliedly the National Assembly 
refrained itself from making it as an Act of Parliament. 
Inasmuch as, the actions taken from the date of its inception 
till the expiry of its constitutional life of 120 days under 
Article 89 of the Constitution from 5th October 2007 to  
1st February 2008, benefits derived by some of the person 
have not been protected, and the Government (either Federal 
or Provincial) has also not insisted to allow retention of the 
benefits derived out of it to the accused persons during the 
said period. More so, none of the beneficiaries, who have 
drawn benefit during the said stipulated period from 5th 
October 2007 to 31st July 2009, when vide judgment dated 31st 
July 2009, all the Ordinances were declared to have been 
Const.P.76/2007, etc. 
 
245 
shorn of permanency, have not come forward to protect their 
benefits, although hearing of these petitions has been widely 
publicized in print and electronic media. Thus in view of 
theory of ultra vires, explained in Cooley’s Constitutional 
Limitations, reference of which has been made by Chief 
Justice Cornelius (as then he was) in Fazlul Quader 
Chowdhry   v.  Muhammad Abdul Haque (PLD 1963 SC 
486), wherein it has been observed that “for the constitution 
of the State is higher in authority than any law, direction, or 
order made by anybody or any officer assuming to act under 
it, since such body or officer must exercise a delegated 
authority, and one that must necessarily be subservient to the 
instrument by which the delegation is made; in any case of 
conflict the fundamental law must govern, and the act in 
conflict with it must be treated as of no legal validity”, we are 
of the opinion that the NRO, 2007 is void ab initio, therefore, 
the parties who have derived benefit shall not be entitled for 
the same from 5th October 2007 and all the cases withdrawn 
under Section 2, 6 & 7 of the NRO, 2007 shall stand revived 
immediately. The Courts seized with the matters shall 
proceed to decide the same, considering that the NRO, 2007 
was never promulgated.  
Const.P.76/2007, etc. 
 
246 
170.  
It is also to be noted that while examining the 
vires of a statute the Court is free to examine the same on the 
touchstone of different constitutional provisions as it has 
been held in Muhammad Mubeen-us-Salam  v.  Federation 
of Pakistan (PLD 2006 SC 602):  
“52. In this behalf it may be noted that this Court, in 
exercise of constitutional Jurisdiction conferred upon 
it under various provisions of the Constitution, 
including Articles 184, 185, 186, 187(1) and 212(3), 
enjoys enormous power of judicial review. Besides, it 
is well-settled by this time that being the apex Court, 
it has also been vested with inherent Powers to 
regulate its own authority of judicial review, 
inasmuch as, that in Zafar Ali Shah v. Pervaiz 
Musharraf, Chief Executive of Pakistan (PLD 2000 SC 
869), it has been held by the full Court that "so long 
as the superior Courts exist, they shall continue to 
exercise powers and functions within the domain of 
their jurisdiction and shall also continue to exercise 
power of judicial review in respect of any law or 
provision of law which comes for examination before 
the superior Courts. " Argument by one of the 
learned counsel that in the absence of violation of any 
of the fundamental rights, guaranteed by the 
Constitution, section 2-A of the STA, 1973 can be 
struck down only if in derogation of Article 8 of the 
Constitution and there is no other specific provision 
in the Constitution, authorizing this Court to exercise 
powers in this behalf is untenable on the face of it. A 
reference to the case of Mr. Fazlul Qader Chowdhry 
(ibid) would indicate that "superior Courts have 
inherent duty, together with the appurtenant power, 
Const.P.76/2007, etc. 
 
247 
to ascertain and enforce the provisions of the 
Constitution in any case coming before them." In the 
case of A.M. Khan Leghari v. Government of 
Pakistan (PLD 1967 Lahore 227), it has been 
emphasized that " ----------in cases of conflict between 
the supreme law of the Constitution and an 
enactment it is the duty of the superior Courts as its 
protectors and defenders to declare the enactment in 
question as invalid to the extent of its repugnancy 
with the constitutional provision in the absence of 
any bar either express or implied." Similarly, in 
Messrs Electric Lamp Manufacturers of Pakistan Ltd. 
v. The Government of Pakistan (1989 PTD 42), it has 
been held that "the Parliament in England is 
sovereign in the real sense and it is not subject to any 
constraints as in England there is no written 
Constitution, whereas in Pakistan the Parliament is 
subject 
to 
constraints 
contemplated 
by 
the 
Constitution in accordance with the procedure 
provided therein, but so long as it is not amended the 
Parliament has to act within its four corners; so a 
statute or any of its provisions can be struck down on 
the ground of being ultra vires of the Constitution." 
Likewise, in the case of Fauji Foundation v. 
Shamimur Rehman (PLD 1983 SC 457), it is held that 
"-----------when a Court, which is a creature of the 
Constitution itself, examines the vires of an Act, its 
powers are limited to examine the legislative 
competence or such other limitations as are in the 
Constitution; and while declaring a legislative 
instrument as void, "it is not because the judicial 
power is superior in degree or dignity to the 
legislative power" but because it enforces the 
Constitution as a paramount law either where a 
Const.P.76/2007, etc. 
 
248 
legislative 
instrument 
is 
in 
conflict 
with 
the 
constitutional provision so as to give effect to it or 
where the Legislature fails to keep within its 
constitutional limits." In the case of Liaqat Hussain v. 
Federation of Pakistan (PLD 1999 SC 504), the 
conclusion was that "Court cannot strike down a 
statute on the ground of mala fides, but the same can 
be struck down on the ground that it is violative of a 
constitutional provision. In Collector of Customs and 
others v. Sheikh Spinning Mills (1999 SCMR 1402), 
this Court struck down the imposition of pre-
shipment inspection service charge under the 
Customs Act, 1969 as unconstitutional, which of 
course was not based on any fundamental rights. 
Relevant para reads as under:-- 
  
"Considering the case from all angles, although 
the Federal Legislature is competent to legislate 
for the imposition of fees within the meaning of 
Entry 54, in the Federal Legislative List, Fourth 
Schedule to the Constitution, but again as already 
discussed hereinbefore, one has to see what is the 
nature of the legislation and whether the same 
could have been legislated within the ambit of the 
powers of the Federal Legislature. No doubt, 
legislation can be made to impose fee in respect of 
any of the matters in the Federal Legislative List, 
but definitely not for pre-inspection, the benefit of 
which has to go to the companies appointed to 
carry out the inspection and not to the payees of 
the fees. The imposition of such fee is not in lieu of 
services to be rendered for the benefit of its payees 
--------------------------   
  
For the foregoing reasons, we are of the view that the 
imposition of service charge as imposed under 
section 18-B of the Act towards the pre-shipment 
inspection is ultra vires of the powers of the Federal 
Legislature." 
Const.P.76/2007, etc. 
 
249 
53. Likewise, in the case of Zaman Cement Company 
(Pvt.) Ltd. v. Central Board of Revenue and others 
(2002 SCMR 312) this Court observed that "the 
function of the judiciary is not to question the 
wisdom of Legislature in making a particular law nor 
it can refuse to enforce it even if the result of it be to 
nullify its own decisions provided the law is 
competently made; its vires can only be challenged 
being violative of any of the provisions of the 
Constitution and not on the ground that it nullifies 
the judgment of the superior Courts." In this 
judgment the use of expression `any, has widened the 
jurisdiction of the Court and extended it to the extent 
of the violation of any of the provisions of the 
Constitution including fundamental rights. Similarly 
in Ghulam Mustafa Ansari v. Government of Punjab 
(2004 SCMR 1903) it was held that "ordinarily it is not 
for us to question the wisdom of the Legislature 
merely on the ground that a provision of law may 
work some inconvenience or hardship in the case of 
some persons, unless it be violative of a constitutional 
provision including the fundamental rights".” 
  
171.   
We have examined the respective contentions of 
the learned counsel for the parties as well as the vires of the 
NRO, 2007 on the touchstone of various Articles of the 
Constitution, and have come to the conclusion that the NRO, 
2007 as a whole, particularly its Sections 2, 6 and 7, is 
declared void ab initio being ultra vires and violative of 
Articles 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of 
Const.P.76/2007, etc. 
 
250 
the Constitution, therefore, it shall be deemed non est from 
the day of its promulgation i.e. 5th October 2007 as a 
consequence whereof  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 accused persons, are also 
declared never to have existed in the eyes of law and  
resultantly of no legal effect.  
172.   
Resultantly, all cases in which the accused 
persons were either discharged or acquitted under Section 2 
of the NRO, 2007 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-5th of October, 2007 
position. 
173.   
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 
Const.P.76/2007, etc. 
 
251 
from where such proceedings had been brought to an end in 
pursuance of the above provisions of the NRO, 2007. 
174.   
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.  
175.   
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, 2007 shall also stand 
revived and the relevant and competent authorities shall 
proceed in the said matters in accordance with law. 
176.   
It may be clarified that any judgment, conviction 
or sentence recorded under Section 31-A of the NAO, 1999 
shall hold the field subject to law and since the NRO, 2007 
stands declared as void ab initio, therefore, any benefit 
derived by any person in pursuance of Section 6 thereof is 
Const.P.76/2007, etc. 
 
252 
also declared never to have legally accrued to any such 
person and consequently of no legal effect. 
177.   
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. 
178.   
Since the NRO, 2007 stands declared void ab  
 
Const.P.76/2007, etc. 
 
253 
initio, therefore, any actions taken or suffered under the said 
law are also non est in law and 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. 
179.   
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  
Const.P.76/2007, etc. 
 
254 
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. 
180.   
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 NAO, 1999 as also in 
terms of the observations of this Court made in Khan 
Asfandyar Wali’s case (PLD 2001 SC 607). However, till such 
fresh appointments are so made, the present incumbents may 
continue to discharge their obligations strictly in accordance  
 
Const.P.76/2007, etc. 
 
255 
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. 
181.   
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 respect 
of Court cases (explanation added in detailed reasons) in the 
above noticed and other cases under the NAO, 1999. 
Likewise similar Monitoring Cells shall be set up in the High 
Courts of all the Provinces comprising the Chief Justice of the 
respective Province or Judges of the concerned High Courts 
to be nominated by them to monitor the progress and the 
proceedings in respect of Court cases (explanation added in 
detailed reasons) in which the accused persons had been 
acquitted or discharged under Section 2 of the NRO, 2007. 
182.   
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. 
 
Const.P.76/2007, etc. 
 
256 
183.  
Hereinabove are the reasons of our short order 
dated 16th December 2009.  
 
 
 
 
 
Chief Justice.     
 
 
Judge (1) 
 
Judge (2) 
 
Judge (3)  
 
 
 
 
 
 
 
 
 
Judge (4) 
 
Judge (5)   
Judge (6) 
 
 
 
Judge (7)   
Judge (8) 
 
Judge (10)  
 
 
Judge (11)  
Judge (12)   
Judge (13) 
 
 
Judge (14)   
Judge (15)  
Judge (16) 
  
 
 
 
 
 
Judge (17) 
Islamabad 
16.12.2009 
Irshad  /* 
 
 
 
 
APPROVED FOR REPORTING. 
 
I agree, by separate note 
I agree, however I add my own note 
I agree and have also added my 
separate note 
Const.P.76/2007, etc. 
 
257 
 
CH. IJAZ AHMED, J.   I have had the benefit and privilege of going 
through the judgment recorded by Mr. Justice Iftikhar Muhammad 
Chaudhry, Hon’ble Chief Justice of Pakistan and generally agree 
therewith. In view of the importance of the matter, I deem it prudent to 
add few words in support thereto. The facts and contentions have already 
been narrated in detail by the Hon’ble Chief Justice of Pakistan, 
therefore, reiteration thereof are not required. 
2. 
 
Legislative history/past events are relevant for interpreting 
constitutional provisions on the principle of historical modalities.  The 
Muslims had ruled sub continent for a considerable period.  During the 
period of the Muslim rule, sub continent was rich in all spheres of life.  It 
is interesting to note that rate of literacy was very high above 90 percent 
as highlighted by Frishta while writing history of the sub continent.  
Even otherwise sub continent was known as the richest part of the world.  
The western countries also  had belief that sub continent was rich qua all 
types of resources such as minerals, wheat, rice etc as the land of the sub 
continent was very fertile as compared to other parts of the world.  Sub 
continent was almost surrounded by mountains and large open area due 
to which according to the western countries this area is known as 
“Soonay ke Chiria”.  The kingdom of Britain and France had entered in 
sub continent for the purpose of  business.    
3. 
          After death of Aurangzeb the  system of justice, established 
by the Muslims, was totally dis-regarded and Muslims were fighting 
with  each other for securing power.  This  was the time when the East 
India Company had taken benefit of its experience and ultimately had 
become rulers of the sub continent.  It is pertinent to mention that Lord 
Const.P.76/2007, etc. 
 
258 
Macaulay had made  speech at the floor of the British Parliament on 2nd 
February, 1835 which is to the following effect:- 
“I have traveled across the length and 
breadth of India and I have not seen one 
person who is a beggar, who is a thief.  Such 
wealth I have seen in this country, such high 
moral values, people of such caliber, that I 
do not think we would ever conquer this 
country, unless we break the very backbone 
of this nation, which is her spiritual and 
cultural heritage, and, therefore, I propose 
that we replace her old and ancient 
education system, her culture, for if the 
Indians think that all that is foreign and 
English is good and greater than their own, 
they will lose  their self-esteem, their native 
self-culture and they will become what we 
want them, a truly dominated nation”. 
       
             (a) 
HISTORY OF CONCEPT OF EQUALITY BEFORE 
LAW. 
4. 
 
Holy Quran says; “if Ye Judge between mankind, that Ye Judge 
justly”.  The Holy Prophet (PBUH) proclaimed; “people are all equal as the 
teeth of a comb”. 
5. 
 
The concept was introduced by Islam and further highlighted, 
implemented and explained by the Holy Prophet (PBUH).  See Pakistan 
Petroleum Workers Union’s case (1991 CLC 13).  The relevant observations 
are as follows:- 
“This Article guarantees to all citizens of Pakistan equality 
before law and equal protection of law.  These rights 
guaranteed by the Constitution are now universally applied 
and practised in all the civilized world.  It finds recognition in 
Universal Declaration of Human Rights and the Covenant on 
Human Rights, 1950.  An examination of Constitutions of 
Const.P.76/2007, etc. 
 
259 
various countries will show that the written Constitutions 
have invariably used the expression “equality before law” but 
“equal protection of law” has not so commonly been used.  
According to the jurists term “equal protection of law” finds 
it origin in the 14th Amendment of the American Constitution.  
In my humble view the concept of both terms “equality 
before law” and “equal protection of law” is not of so recent 
origin in  jurisprudence as described by various authors and 
jurists.  From a comparative study of the legal history and 
jurisprudence we find that the concept of equality before law 
and principles of “equal protection of the law” were for the 
first time given and firmly practised by the Holy Prophet (be 
peace on him).  Therefore, it can be traced as far back as 1400 
years, i.e. much before the Magna Carta, 14th Amendment of 
American Constitution, Declaration of Human Rights and the 
theory of Rule of Law as enunciated by the Western Jurists.  
The Last Sermon of the Holy Prophet (be peace on him) is a 
landmark in the history of mankind which recognizes the 
inalienable Rights of a man conferred by Islam which are 
now known as Fundamental Rights.  The following extracts 
from the farewell Sermon can be reproduced for reference:- 
“……..O Ye people, Allah says: O people We created you 
from one male and one female and made you into tribes and 
nations, so as to be known to one another.  Verily in the sight 
of Allah, the most honoured amongst you is the one who is 
most God-fearing.  There is no superiority for an Arab over a 
non-Arab and for a non-Arab over an Arab, nor for the white 
over the black nor for the black over the while except in God-
consciousness.” 
“All mankind is the progeny of Adam and Adam was 
fashioned out of clay.   
Behold! Every claim of privilege whether that of blood or 
property, is under my heels except that of the custody of the 
Ka’ba and supplying of water to the pilgrims…………..” 
“Behold! All practices of the days of ignorance are now 
under my feet.  The blood revenges of the days of ignorance 
are remitted……..All interest and usurious dues accruing 
from the times of ignorance stand wiped out…….” 
“O people, verily your blood, your property and your honour 
are sacred and inviolable until you appear before your Lord, 
as the sacred inviolability of this day of yours, this month of 
yours and this very town (of yours).  Verily you will soon 
Const.P.76/2007, etc. 
 
260 
meet your Lord and you will be held answerable for your 
actions.” 
6. 
 
The extract from last Sermon of the Holy Prophet (PBUH) is 
landmark in the history of man kind which is reproduced hereunder:- 
“12. 
The concept of equality amongst the mankind was 
introduced for the first time by Islam.  The Holy Prophet (peace 
be upon him) preached and practised equality throughout the 
life and sermon delivered on the occasion of last Haj performed 
by the Holy Prophet (peace be upon him) is the first landmark 
in the history of mankind.  It was clear for all times to come that 
there is no difference amongst the individuals on the basis of 
race, colour and territory.  The relevant portion reads as under: -
- 
16. 
The Holy Prophet (peace be upon him) said in his 
address at the Hajjat-ul-Wida, the last Haj, performed by him, 
that ………O! people, hear me, your Lord is one and your 
father is one.  No Arab has any superiority over a non-Arab, nor 
any non-Arab over an Arab nor any white man over a black 
man, nor a black man over a white man save in respect of piety 
and fear of Allah’.” 
 
 
 
7. 
 
The source of insertion of Article 25 is on the basis of the 
aforesaid history highlighted hereinabove.  Similarly our constitution also 
ensures dignity of every individual as is evident from atticle 14 of the 
constitution.  See:- 
i) 
Francis Corolie Mullin’s case (AIR 1981 SC 746) 
ii) 
A.K. Roys’ case (AIR 1982 SC 710) 
iii) 
Bandhu Mukti Moracha’s case (1984 SC 802) 
iv) 
Bachan Singh’s case (AIR 1982 SC 1235) 
v) 
Weereja Chaudhry’s case (AIR 1984 SC 1099) 
vi) 
Suo Motu Constitutional Petition: (1994 SCMR 1028) 
 
8. 
             It is a settled maxim that the very concept of fundamental right 
is that it being a right guaranteed by the Constitution cannot be taken away by 
the law.  See  Jibendra Kshore’s case (PLD 1957 SC 9). 
Const.P.76/2007, etc. 
 
261 
9. 
 
It is settled principle of law that where a statute is ex facie 
discriminatory but is also capable of being administered in a discriminatory 
manner and it appears that it has  actually being administered to the detriments 
of a particular class in particular, unjust and oppressive manner then it has 
been void ab initio since its inception.  See Waris Mehi’s case (PLD 1957 SC 
(Pak) 157), Benazir’s case (PLD 1988 SC 416) and I.A. Sherwani’s case (1991 
SCMR 1041) and Azizullah Memon’s case (PLD 1993 SC 341 at 358).  In 
Azizullah Memon’s case vires of the criminal law ordinance were attacked on 
the ground that they were in conflict with fundamental rights guaranteeing 
equality before law, equal protection of law etc.  Saleem Akhtar, J (as then he 
was) had discussed all previous precedents rendered by superior courts.  The 
relevant observation is as follows:-  
“(i) 
that equal protection of law does not envisage that every 
citizen is to be 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 in different age groups, persons having different 
financial standings, 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 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 ----- 
Const.P.76/2007, etc. 
 
262 
(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.” 
 
 
(b) 
CONCEPT OF ISLAM AS UNDERSTOOD BY 
DEWAN 
“This judgment cannot be completed without having a glimpse 
of Islamic Legal System.  Mr. Vijay Kumar Dewan in his Book 
Prosecuting System in India (Practice and Procedure) discussed 
the legal system of Islam in the following terms:-- 
“As like the Hindu law the concept of Muslim Law also held 
that the king derived his authority from Qura’n and the ruler 
was subordinate to law the main source of Islamic law of 
Muslim Law i.e. Shar in Qura’n and Sunnah or Hadis.  The 
Prophet was considered to be the best interpreter of Qur’an.  On 
all matters on which Qura’n was silent Sunnah or Hadis was 
regarded as authority.  Because of divergent views taken on 
various provisions of Qura’n by eminent Muslim Jurists, four 
well defined braches or schools of Muslim law came to be 
recognized by different sections of the Muslims.  Out of the 
four the Hanafi School founded by Abu Hanifa (699-767 A.D.) 
was the most popular in India, few in India however, followed 
the Shafi School founded by Muhammad Ibn Idris Ash-Shafi 
(767-820 A.D.).  The other two i.e. the Maliki School founded 
by Malik Ibn Annas (713-797 A.D.) and the Hanbali School 
based on the teachings of Ahmad Ibn Hanbal (780-855 A.D.) 
were not popular in India.” 
The author further classified criminal offences under the Islamic 
Penal law as follows:- 
(i) 
Offences against God. 
(ii) 
Offences against the State, and 
(iii) 
Crimes against private individuals. 
    
10. 
         The same author discussed the Islamic Justice in the following 
terms:-- 
“… The works of judiciary however, worked systematically in 
view of considerable importance attached by Akbar and his 
Const.P.76/2007, etc. 
 
263 
successors and Akbar had definite zeal to administer justice 
impartially and he had once remarked. If I were guilty of an 
unjust act I would rise in judgment against myself. What shall I 
say then of my sons, my kindred and others.  (In this regard 
reference may be made to the book History and Culture, Vol. 7, 
pages 547 to 552, Aini Akbari Vol. III p.434; Akbarnama, 
Vol.III and Storia do mogar, Vol. I, p. 167)  Akbar used to 
devote some time every morning for judicial works at the 
Jharoka Darshan and Thursday was exclusively kept for judicial 
work, wherein the top officers such as Chief Qazi, Mufties and 
other law dignitaries and Kotwal of the town used to participate.  
He used to decide cases after hearing and ascertaining the law 
from the jurists.  Abdul Fazal the Chronicile Writer of Akbar’s 
Court has given an account of the Royal Court – 
‘He (Akbar) opens the gates of justice and holds an open Court.  
In the investigation in to the cases of the oppressed, he placed 
no reliance on testimony or on the oaths, which are resources of 
the crafty, but draws his conclusions from the contradictions in 
the narratives, the physiognomy, and sublime resources and 
noble conjectures.  Truth takes her place in this centre.  In this 
work he spends not less than one and half pahars (i.e. about five 
hours)’. 
Jahangir followed the ideals of his father.  He also in addition to 
deciding cases every morning had set apart Tuesday exclusively 
for judicial work.  Shahjahan also upheld the maxim of his 
father that justice must be enforced.  Aurangzeb was also very 
keen in administrating impartial justice except in cases which 
concerned the interest of prestige of Islam the arrangement of 
transacting judicial business personally by the sovereign was 
not disturbed even when the Emperor happened to be on tours 
on when he was engaged in a military expedition.  The Emperor 
decided both civil and criminal cases and his Court was not only 
the highest Court of appeal, but also sometimes a Court of  first 
instance.  Sometimes the Emperor used to appoint a 
commission of inquiry and issue instructions to decide cases on 
the basis of facts revealed in the investigation on the  spot. 
Usually the cases deserving capital punishment were decided by 
the King himself.  Such cases even if tried by Governors or 
other authorities, were forwarded to the capital for the Kings’ 
Const.P.76/2007, etc. 
 
264 
final order.  The standing instructions were that no one was to 
be executed until the Emperor had given his orders for the third 
time.” 
 
Keeping in view the historical background of the creation of the 
country beginning with the struggle started by late Sultan 
Haider Ali of Maysor and his noble, brave and courageous son 
Tipu Sultan Shaheed who gave his precious life including life of 
his two beloved sons who fought for freedom, and ultimately 
achieved the goal of freedom under dynamic leadership of 
Quaid-e-Azam Muhammad Ali   Jinnah, who was motivated by 
the spirit of great national  poet Dr. Allama Muhammad Iqbal; 
and sacrifices made by millions of Muslims of this sub-
continent, we must remember that this freedom was formally 
recognized by the imperial power by passing the Independence 
Act, 1947 which gave birth to our esteemed country. 
Before coming to final conclusion, let me quote that once late 
Mian Muhammad Mushtaq Gormani met Lord Wavel who 
during discussion  made some remarks about  the founder of 
Pakistan which are very relevant to reproduce here for the 
purpose of building  national character.  Lord Wavel said:-- 
“He(Founder of Pakistan) is not only honest but he is 
intellectually honest.”  
  
11.              Once the rulers of Muslims had deviated from the said principle of 
providing justice to the people then Great Britain who had entered initially 
through East India Company for the purpose of commercial business, had got 
the opportunity to get the benefit of said situation and had been able to take 
over the power and continued till 1947.  Muslims had launched freedom 
movement in 1857 but could not succeed due to their internal contradictions 
and on account of non cooperation of the Hindu community with the Muslims. 
12. 
 
Subsequently, British established its rule in the sub-continent 
with active support and connivance of Hindus and few Muslim phonies. Bal 
Gangadhar Tilak, first popular independence fighter after war of Independence 
of 1857 was convicted and sentenced by the trial Court where Founder of 
Pakistan appeared as his counsel. Interestingly, Bal Gangadhar Tilak again 
Const.P.76/2007, etc. 
 
265 
engaged Quaid-e-Azam at the appellate stage in the High Court where Quaid-
e-Azam for the first time distinguished between the offence against the state 
and the offence against public functionaries on ground of which appeal was 
accepted. See Bal Gangadhar Tilak V. Emperor (AIR 1916 Bombay 9). This 
episode of Muslim counsel of a Hindu convict gave birth to a little lived 
assumption that both the nation can together toil hard for self rule.    
 
The founder of Pakistan did not want division of the sub continent but  on 
account of behaviour of the Hindu  community, he had demanded a separate 
homeland on the basis of two nations theory.  See Benazir Bhutto’s case (PLD 
1988 SC 416).    
13.               It is settled maxim that nations can achieve goal under dynamic 
leadership and the nations who had a vision to see ahead as is evident from the 
speech of Lord Macaulay on the floor of the house and also from the character 
of the founder of Pakistan alongwith his vision.     
14. 
      The founder of Pakistan was nominated as member of legislative 
assembly and participated in the proceedings of Legislative Council qua bill 
relating to Criminal Law (Emergency Powers) Bill on 14th March, 1919 but 
according to his conscience he did not support government and tendered his 
resignation from the membership of council as a protest against passing of the 
Bill and  the manner in which it was passed. 
(c)  
AFTER CREATION OF COUNTRY. 
15. 
 
The constituent assembly had promulgated objective resolution 
in 1949.  Ultimately it was incorporated in preamble of the constitution of 
Islamic Republic of Pakistan and thereafter it was made substantive part of the 
constitution by adding article 2-A.  It is evident from the history of human 
being that leader/nation would only progress on the basis of its good character.  
Once an individual leader or nation had deviated from this then destruction is 
the result.  The best example in the recent  history of human society is of China 
when this nation with its birth two years after Pakistan, has attained a position 
Const.P.76/2007, etc. 
 
266 
of super power (an economic joint and a permanent member of the security 
council).     
16. 
 
The word “Ameen” difined in the following books which is to 
the following effect: 
1 
The Concise Encyclopedia of Islam at page 41:  
“al-Amin. A name of the Prophet, given  to him by the 
Quraysh before the revelation of Islam, meaning the 
‘Trustworthy One’. The word is used as a title for an 
organization official in a position of trust, such as the 
treasurer of a charitable organization, a guild, and so 
forth”.  
 
 
 
2. 
Urdu Daera-e-Maharafil Islamia at page 279-80 
Const.P.76/2007, etc. 
 
267 
 
 
 
 
Const.P.76/2007, etc. 
 
268 
 
 
3. 
The Encyclopaedia of Islam (New Edition) Vol.1 at 436-
37 
“Amin, ‘safe’, ‘secure’; in this and the more frequent 
from amin (rarely ammin, rejected by grammarians) it is 
used like amen and (Syriac) amin with Jews and 
Christians as a confirmation or corroboration of prayers, 
in the meaning ‘answer Thou’ or ‘so be it’ see examples 
in al-Mubarrad, al Kamil, 577 note 6; Ibn al-Diazari, al-
Nashr, ii, Cairo 1345, 442 f., 447. Its efficacy is 
enhanced at especially pious prayers, e.g. those said at 
the Ka’ba or those said for the welfare of other Muslims, 
when also the angels are said to say amin. Especially it 
is said after sura i, without being part of the sura. 
According to a hadith the prophet learned it from 
Gabriel when he ended that sura, and Bilal asked the 
prophet not to forestall him with it. At the salat the 
imam says it loudly or, according to others, faintly after 
the fatiha, and the congregation repeats it. It is called 
God’s seal (taba or khatam) on the believers, because it 
prevents, evil. 
“Amin” (Ar. Pl. umana), ‘trustworthy, in whom one can 
place ones’s trust’, whence al-Amin, with the article, as 
an epithet of Muhammad in his youth. As a noun, it 
means ‘he to whom something is entrusted, oversear, 
administrator’: e.g. Amin al Wahy, ‘he who is entrusted 
with the revelation’, i.e. the angle Gabriel. The word 
also frequently occurs in titles, e.g. amin al-Dawla (e.g. 
Ibn al-Tilmidh others), Amin al Din (e.g. Yakut), Amin 
al-Mulk, Amin al-Saltana”.  
 
“MORALITY”. 
Words and Phrases, Permanent Edition Volume 
27A: 
“Morality” The words “morality” and “character” may 
have the same meaning when standing alone, but when 
used together the word “moral” defines the kind of 
character required by the rule, that attorney must be of 
good moral character.  When so sued, the word “moral” 
Const.P.76/2007, etc. 
 
269 
is in contradistinction, to the word “immoral”.  
Warkentin v. Klein-watcher, 27 P.2nd 160, 166 Okl. 
218.” 
 “Morality”  The word “morality” is not used in any 
narrow sense, but in a general sense, such as the law of 
conscience, the aggregate of those rules and principles 
of ethics which relate to upright behavior and right 
conduct of elected representatives and  prescribe the 
standards to which their action and in particular those 
who are Muslims, who are guided by the Holy Qur’an 
and Sunnah should conform, in their dealings with each 
other or with institutions or the State”. M. Saifullah 
Khan Vs. M. Afzal. :PLD1982 Lah.77.    
 
 
(d) 
CONSTITUTION BE READ AS AN ORGANIC 
WHOLE 
17. 
 
The body of human being consists of 99 elements with 
proportionate qua each body of human being.  Once the imbalance in the 
said elements  occur then the body as a whole would be disturbed and 
affected.  The body of human being otherwise consists of two parts.  
Body alongwith the elements and “Rooh- spirit”.  All of us have an 
experience that once the rooh/spirit is missing from the body then body 
would become dead automatically that is why the body of human being 
is a compound of aforesaid elements and spirit.  The scheme of the 
Constitution of Pakistan is based on rights and obligations wherein 
chapter 1 contains fundamental rights and principles of policy in chapter 
2. According to my understanding every chapter and every article  has its 
own significance but chapter 1 & 2 had a unique significance.  Once 
these two chapters be held in abeyance as part of the Constitution or to 
do the things in violation of these two chapters by any organ of the state 
then according to me constitution would be dead organ that is why 
Const.P.76/2007, etc. 
 
270 
chapter 1 and 2 be called as flowers and beauty of the Constitution.  The 
preamble of the Constitution has its own significance which shows the 
will of the people to frame the constitution and passed their lives within 
the four corners and that is why it is settled principle of law that 
preamble is the key to understand the constitution.  This is the first door 
to open the book which prescribes its values, comments, obligations, 
rights and commitments. There is no doubt  that no provision of the 
Constitution or law be struck down in case it is framed in violation of 
preamble of the Constitution but at the same time it is very important 
that  while framing the law or taking the action every organ/authority 
must keep in its mind the preamble of the constitution which is the 
command of the forefathers and the nation emerged from the document 
of Objectives Resolution passed by the Constituent Assembly in 1949.  
Our Constitution is based on  trichotomy consisting of following basic 
pillars of the State:- 
a) 
Legislature to frame laws. 
b) 
Executive to implement laws. 
c) 
The Judiciary to interpret the laws  
18. 
 
This is a very beautiful scheme and defined areas of each 
and every organ to keep the balance. Once this balance is disturbed  then 
the document is dead. Article 7 of the Constitution prescribes all 
elements and pillars  of the State  for the purpose of imposing cess and 
tax, legislature and executive. The legislature had specifically not 
mentioned the judiciary in article 7 as the judiciary is duty bound to 
maintain the balance between all the organs, therefore, judiciary is 
mentioned in part VII under the heading of “Judicature” vide Article 
175.  It is settled proposition of law that other two organs i.e. legislature  
Const.P.76/2007, etc. 
 
271 
and executive have no authority whatsoever to usurp or to take role of 
the judiciary as it is in violation of the salient features of the constitution 
which cannot be changed by any canon of justice as laid down by this 
Court in various pronouncements.  Se Zyed Zafar Ali Shah’s case (PLD 
2000 SC 869), Mehmood Khan Achakzai’s case ( PLD 1997 SC 426) 
and Farooq Ahmed Khan Leghari’s case ( PLD 1999 SC 57 ).  It is 
pertinent to mention here that Supreme Court of India had taken this 
view which is before us  that basic features of the Constitution could not 
be changed but unfortunately we  could not take that stand earlier except 
the aforesaid judgments that is why the country since creation on 14-8-
1947 till to date most of the time there was no  democratic government 
around for about 37 years.  Now it is high time that each and every organ 
must resolve to save the nation and country to remain within their 
spheres and discharge their duties in accordance with law. Article 4 of 
our Constitution compels every body to act in accordance with law 
whereas article 5 of the Constitution cast duty upon each and every 
organ/person to obey the command of the Constitution.  Similarly 
Articles 189 and 190 of the constitution has prescribed duty to every 
organ to implement judgments of the courts.   
19.                  It is pertinent to mention here that 3rd organ is also duty 
bound to remain within its sphere in terms of article 4 of the 
Constitution.  The provisions of the impugned ordinance are directly in 
conflict with the aforesaid provisions of the Constitution.  In fact through 
the impugned ordinance, the salient features of the constitution were 
changed in violation of the aforesaid judgments and command of the 
various provisions of the Constitution.  
Const.P.76/2007, etc. 
 
272 
 
(e)  
POWER 
OF 
PRESIDENT 
TO 
PROMULGATE 
ORDINANCE. 
20.             It is pertinent to mention here that President had power to 
frame ordinance under Article 89(1) subject to certain conditions which 
are as follows:-  
b) 
National Assembly is not in session. 
c) 
President if satisfies that circumstances exist which render 
it necessary to take immediate action make and promulgate 
the ordinance as the circumstances may require.          
 
21. 
 
The President had the same power as of the National 
Assembly to frame the laws, that is why principle of check and balance 
was incorporated in article 89 sub article 2 that life of the ordinance 
would be four months and the parliament had power even to pass 
resolution disapproving the said ordinance by the assembly that it would 
automatically stand repealed after expiry of four months from its 
promulgation or before the expiration in case of resolution of its dis-
approval  is passed.  The president had also power to withdraw the 
ordinance at any time.  The President had to promulgate the ordinance at 
the advice of the cabinet.  This fact brings the case in the area that it was 
the satisfaction of the Parliament under Article 89(1) as is evident from 
the summaries produced before the  Court by Acting Attorney General 
for Pakistan.  It was merely mentioned as a ‘draft ordinance’ and nothing 
else. The preamble of the ordinance also does not  reveal that any 
satisfaction was made before promulgating of the ordinance.  It is settled 
law  that when a thing is to be done in a particular manner, it must be 
done in that manner and not otherwise. The said Ordinance was 
promulgated even in violation of Article 89. The scheme of the 
Constitution as mentioned above in our Constitution is based on 
trichotomy but in case we read the constitution as a whole then it 
Const.P.76/2007, etc. 
 
273 
automatically emerges that there is 4th pillar i.e. people of Pakistan for 
whose benefit every law be framed who are the real sovereign because 
the people of Pakistan had chosen the representatives of National 
Assembly and provincial assemblies and Senate.  The Ordinance has not 
been framed for the welfare of the people of Pakistan.  It had been 
framed by the then President of Pakistan for his benefit and benefit of the 
other privileged class.  It is very difficult for me to imagine that any  
written or unwritten constitution can allow framing law against the 
welfare of people of the country.  Similarly the President had a power to 
pardon by virtue of Article 45 of the Constitution but had no right 
whatsoever to give clean chit or to withdraw the case of the complainant 
whose near relations were murdered.  The whole ordinance and preamble 
to Section 7 is in violation of various provisions of the constitution 
mentioned hereinabove. 
(f)  
PRINCIPLE OF CHECK & BALANCE. 
Hazrat Abu Bakr Siddique (RA), First Caliph of Islam in 
his first address had said that in case he violated any 
injunction of Islam, then people should guide him to be on 
right path. And there rose a Bedouin sitting in the audience 
who remarked that in case he violated the principles of 
Islam, then they would 
set him on right 
path (Nazay ki nook par)         
The  second  Caliph Hazrat Umar Farooq (RA) had a shirt 
(Choga) on his body. He was asked to explain regarding 
the cloth of that shirt because the cloth of shirt according to 
his share ~~~ was much less than the body of Caliph. The 
Caliph replied that he had used the share of his son for 
Const.P.76/2007, etc. 
 
274 
making his own shirt. This is the type of accountability 
which we have to follow to save the nation to put on a right 
path. 
(g) 
IMPUGNED 
ORDINANCE 
VIS-AVIS 
FUNDAMENTAL RIGHTS.   
 
22. 
          The word corruption has been defined as it has diverse 
meanings and far reaching effects on society, government and people.  In other 
words it has always been used in a sense which is completely opposite to 
honesty, orderly and actions performed according to law.    A person working 
corruptly acts inconsistent with the official duty, the rights of others and the 
law governing it with intention to obtain an  improbable advantage for self or 
some one else. 
23. 
 
The word corruption is well known to our nation as National 
Assembly and Provincial Assemblies were dissolved by the President and 
Governors under Article 58(2)(b) and article 112 of the constitution 
respectively as these articles were part of the constitution which were 
introduced through 8th amendment.  See:- 
i) 
Khalid Malik’s case (PLD 1991 Karachi 1) 
ii) 
Khawaja Ahmed Tariq Rahim’ds caxse (PLD 1990 Lah. 505) 
iii) 
Khawaja Ahmed Tariq Rahim’s case (PLD 1991 Lah. 78) 
iv) 
Khawaja ahmed Tariq Rahim’s case (PLD 1992 SC 646) 
v) 
Aftab Ahmed Khan sherpao Case (PLD 1992 SC 723) 
vi) 
Mian Muhammad Nawaz Sharif’s case (PLD 1993 SC 473) 
vii) 
Benazir Bhutto’s case (PLD 1998 SC 388) 
24. 
          Our  Constitution  clearly envisages that sovereignty over the 
entire universe belongs to Almighty Allah alone and the authority to be 
exercised by the people of Pakistan  within the limits prescribed by Him as a 
sacred trust.  See Shahid Nabi Malik’s case  (PLD 1997 SC 32). 
Const.P.76/2007, etc. 
 
275 
25. 
 
The word corruption is also defined  by this Court in Mian 
Muhammad Nawaz Sharif’s case (PLD 1993 SC 473 at 837-838) which is to 
the following effect:- 
“The word ‘corruption’ has not been defined by any law, but it 
has diverse meaning and far-reaching effects on society, 
Government and the people.  It covers a wide field and can 
apply to any co lour of influence, to any office, any institution, 
any forum or public.  A person working corruptly acts 
inconsistent with the official duty, the rights of others and the 
law governing it with intention to obtain an improbable 
advantage for himself or someone else.  Dealing with 
corruption in Khalid Malik’s case I had observed as follows:- 
“This bribe culture has plagued the society to this extent that it 
has become a way of life.  In Anatulay VIII (1988) 2 SCC 602 
where Abdul Rehman Antulay, Chief Minister of Maharashtra 
was prosecuted for corruption Sabyasachi Mukharji, J. laments 
as follows:--  
“Values in public life and perspective of values in public live, 
have undergone serious changes and erosion during the last 
few decades.  What was unheard before is commonplace today.  
A new value orientation is being undergone in our life and 
culture.  We are at threshold of the cross-roads of values.  It is, 
for the sovereign people of this country to settle these conflicts 
yet the courts have a vital role to play in these matters. 
The degeneration in all walks of life emanates, from corruption 
of power and corruption of liberty.  Corruption breeds 
corruption.  ‘Corruption of liberty’ leads to liberty of 
corruption’.” 
……………………………………………………………………………
………………………… 
Const.P.76/2007, etc. 
 
276 
Corruption and bribery adversely affect the social, moral and 
political life of the nation.  In society rampant with corruption 
peoples lose faith in the integrity of public administration.  In 
India in 1964 Committee on the Prevention of Corruption 
known as Sanathanam Committee observed as follows:-- 
“It was represented to us corruption has increased to such an 
extent that people have started losing faith in the integrity of 
public administration.  We had heard from all sides that 
corruption, in recent years, spread even to  those levels of 
administration from which it was conspicuously absent in the 
past.  We wish we could confidently and without reservation 
assert that at the political level Ministers, legislators, party 
officials were free from the malady.  The general impressions 
are unfair and exaggerated.  But they very fact that such 
impressions are there causes damage to social fabric.’ 
The Committee also observed that there is a popular belief of 
corruption among all classes and strata which ‘testifies not 
merely to the fact of corruption but its spread’.  Such belief has 
a social impact causing’ damage to social fabric.’ 
The anti-corruption and penal laws have remained ineffective  
due to their inherent defect in adequately meeting the fast 
multitudinous growth of corruption and bribery.  Corruption in 
high places has remained unearthed leading to a popular belief 
that immunity is attached to them.  To combat corruption the 
whole process and procedure will have to be made effective and 
institutionalized.” 
26. 
    
In other words written constitution of county is  a 
document which defines the regular form or system of the  government, 
containing the rules that directly or indirectly affect distribution or 
Const.P.76/2007, etc. 
 
277 
exercise of the sovereign power of the state and it is thus mainly 
concerned with creation of three organs of State and the distribution of 
authority of the government among them and the definition of their 
mutual relation.  We must remember that  a constitution is not just a 
document but a living frame work for the government of the people and 
its successful working depends upon the democratic spirit underlying it 
being respected in letter and spirit.  Whenever the spirit of the 
Constitution was violated, the result was chaos and this fact finds 
support from following extracts of Shahabnama by Qudrat Ullah 
Shahab: 
 
Const.P.76/2007, etc. 
 
278 
 
Const.P.76/2007, etc. 
 
279 
 
 
27. 
 
The raison d’etre of any constitution is to constitute a country 
and it is the document which contemplates the grundnorms of State and its 
laws.  Aim of all jurisprudence is “public good” or “Welfare of the people”.  
No Law can be wholesome and no state can be a welfare State unless the 
principles of amr bil maruf wan hi anil munkar   
is strictly adhered to.  God Almighty has created mankind and He loves those 
who love its creation and strives for its welfare.  Our forefathers were 
conscious of this principle and, therefore, the objective resolution was passed.  
The preamble, containing objective resolution, of the Constitution of Islamic 
Republic of Pakistan, 1973 cast a sacred duty on the chosen representative of 
the people and, that is, to exercise powers and authority to run the State in such 
manner which promotes: (i) principles of democracy, freedom, equality, 
tolerance and social justice, as enunciated by Islam; (ii) Muslim to order their 
lives in the individual and collective spheres in accordance with the teaching 
and requirements of Islam as set out in the Holy Quran and Sunnah; (iii) 
protection of minorities and backward and depressed classes; (iv) autonomy of 
the units of Federation; (v) Fundamental Rights, including equality of status, of 
opportunity and before law, social, economic and political justice, and freedom 
of thought, expression, believe, faith, worship and association, subject to law 
and public morality; (vi) independence of judiciary; (vii) integrity of the 
territories of the Federation, its independence and all its rights, including its 
sovereign rights on land, sea and air, in fact the above said are the grundnorms 
and limitations of each organ of the State. 
 
 
28. 
 
Validity of any law can be tested by its result or fruit. If a law 
evokes healthy feelings/atmosphere, then it is valid otherwise it is void.  An 
illegal morsel gives birth to evils.  Similarly any legislation which hurts the 
Const.P.76/2007, etc. 
 
280 
welfare of the people should not be allowed to stand among the people.  In this 
regard, I may quote the following couplet from Molana Roumi’s Masnevy:- 
 
 
 
29. 
 
From the legal morsel which born knowledge, love and 
tenderness.  If you see that jealousy, deception, ignorance, negligence is born 
from a morsel, know that it was unlawful.  The morsel is a seed and thoughts 
are its fruit.  The morsel is the seed and thoughts are its pearls. 
 
30. 
 
In view of above perspective if we allow to hide/swallow 
corruption and corrupt practices, then obviously it would not be conducive for 
the people of Pakistan and for the welfare of the State.  The people of Pakistan 
may prosper and attain their rightful and honoured place amongst the nations 
of the world and make their full contribution towards international peace and 
progress and happiness of humanity if grundnorms stated in preamble are 
strictly followed.  In this view of the matter, the national Reconcilliation 
Ordinance, 2007 being an illegal morsel is declared a legislation viod abi-nitio. 
 
31. 
 
However, taking  advantage of brevity, I simply hold that the 
National Reconciliation Ordinance, 2007 is not  valid and in this regard, I 
endorse the view of our celebrated poet Sagar Siddiqui, which he expressed in 
this following poetic couplet:-   
 
Const.P.76/2007, etc. 
 
281 
 
 
 
 
32. 
 
For the purpose of maintaining balance between each and every 
organ of the State, I conclude the note and suggest all organs to obey the 
command of the Constitution from core of their hearts which is possible on 
working as per saying of Wasif Ali Wasif (Philosophical Islamic Writer) and 
Moulana Roomi respectively which are to the following effect: 
 
(Justice Ch. Ijaz Ahmed) 
Const.P.76/2007, etc. 
 
282 
 
JAWWAD S. KHAWAJA, J.-   I have gone through the detailed 
reasons recorded by Hon’ble the Chief Justice, for the short order announced 
on 16.12.2009. These reasons exhaustively examine the arguments advanced 
before us by learned counsel for the parties and by the amicii curiae who ably 
assisted us in these matters. While agreeing with the reasoning of Hon’ble the 
Chief Justice,  I would like to add this note to emphasize aspects of the case 
which I consider to be of special relevance when examined in the context of 
the constitutional history of Pakistan.  
2. 
At the very outset it must be said, without sounding extravagant, that 
the past three years in the history of Pakistan have been momentous, and can 
be accorded the same historical significance as the events of 1947 when the 
country was created and those of 1971 when it was dismembered. It is with this 
sense of the nation’s past that we find ourselves called upon to understand and 
play the role envisaged for the Supreme Court by the Constitution. The Court 
has endeavoured to uphold the Constitution and has stood up to 
unconstitutional forces bent upon undermining it. It is in this backdrop that 
these petitions have been heard and decided.  
3. 
It is to be noted that though there was no significant opposition to these 
petitions and even though the Federal Government did not defend the NRO, 
the important constitutional issues raised through these petitions were thrashed 
out to ensure that there is adherence to the provisions and norms of the 
Constitution, not only for the sake of deciding these cases but also to lay down 
precedent for the institutions of the State and its functionaries in terms of 
Article 189 of the Constitution.   
4. 
I would also like to add that there can be no possible objection to the 
avowed objectives of the NRO as set out in its preamble, viz. promotion of 
national reconciliation and removal of the vestiges of political vendetta and 
victimization. These objectives, however, must be achieved through means 
which are permitted by the Constitution. The Court while exercising the 
judicial function entrusted to it by the Constitution is constrained by the 
Const.P.76/2007, etc. 
 
283 
Constitution and must, therefore, perform its duty of resolving matters coming 
before it, in accordance with the dictates of the Constitution and the laws made 
thereunder. If the Court veers from this course  charted for it and attempts to 
become the arbiter of what is good or bad for the people, it will inevitably 
enter the minefield of doctrines such as the ‘law’ of necessity or salus populi 
suprema lex, with the same disastrous consequences which are a matter of 
historical record. This Court has, in its judgment in the case of the Sindh High 
Court Bar Association Vs. Federation of Pakistan ( PLD 2009 SC  879) 
emphatically held that it will not deviate from strict adherence to the law and 
the Constitution. Decisions as to what is good or bad for the people must be 
left to the elected representatives of the people, subject only to the limits 
imposed by the Constitution.  
5. 
It has now been firmly and unequivocally settled that the Court cannot 
and should not base its decisions on expediency or on consideration of the 
consequences which may follow as a result of enforcing the Constitution. It is 
for this reason that while deciding the case of Sindh High Court Bar 
Association Vs. Federation of Pakistan ( PLD 2009 SC  879 ), the Court 
assiduously avoided validating any of the unconstitutional acts of General 
Musharraf including his attempt to clothe 37 Ordinances (NRO included) with 
permanence in violation of the Constitution. It was, in accordance with the 
scheme of the Constitution and its democratic character that the right of the 
legislature to enact these Ordinances with retrospective effect was recognized 
and upheld. It is a matter of record, as noted in the reasons recorded by 
Hon’ble the Chief Justice, that the elected representatives of the people chose 
not to resurrect the NRO or to give cover to any acts thereunder through 
retrospective legislation.  
6. 
In the foregoing context it will be evident that while the Court is 
obliged to eschew expediency and any other extraneous considerations such as 
the fall- out and consequences of its judgments, the executive and legislative 
limbs of the State do not suffer from similar constraints. As such the 
Const.P.76/2007, etc. 
 
284 
consequences of executive and legislative decisions are a legitimate concern of 
these organs of the State. Legislators and functionaries performing executive 
functions may resort to expediency, compromise and accommodation in 
achieving political and policy objectives considered appropriate in their 
judgment. As long as such decisions conform to and are not violative of the 
Constitution, the executive and the legislature are only accountable to the 
electorate and not to Courts. This is the democratic principle enshrined in the 
Constitution.  
7. 
One reason for giving the above background is to examine and 
comment on the applications (CMA Nos. 4875 and 4898 of 2009) submitted 
by Mr. Kamal Azfar, Sr. ASC on behalf of the Federal Government. The 
relevant contents of these applications have been duly noted in the main 
judgment. Of  particular concern to me are the following excerpts from these 
applications:-  
“Pak today is poised at the cross roads. One road leads to 
a truly federal democratic welfare state with the balance of power 
between an independent judiciary, a duly elected Govt. representing 
the will of the people and 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.” 
 
8. 
There is, implicit in the above words, a plea to the Court to once again 
revert to the disastrous and rejected route of expediency and to tailor the 
outcome of these petitions by looking at the consequences which will follow, 
rather than the requirements of the Constitution. I would like to state most 
emphatically that the path of expediency and subjective notions of ‘State 
necessity’ are dead and buried. I find it quite extraordinary that a 
democratically elected Federal Government should be imploring the Court to 
act in a manner otherwise than in accordance with law. It was emphasized to 
Mr. Kamal Azfar while considering the aforesaid applications in Court, and it 
now needs to be reiterated in the strongest terms that this Court will not take 
into account extraneous considerations while exercising its judicial powers and 
Const.P.76/2007, etc. 
 
285 
also that adherence to the Constitution can never lead to “destabilization of the 
rule of law.”  On the contrary, any breach of Constitutional norms is likely to 
destabilize the rule of law.  
9. 
The onus, therefore, of  stabilizing the rule of law falls on and must be 
assumed by the executive organ of the State which also commands a majority 
in the legislature. This is the requirement of the Parliamentary democratic  
dispensation ordained by our Constitution. Political stability and the rule of 
law will flow as a natural consequence of giving sanctity and respect to the 
Constitution, both in letter and  in spirit. The Court can only strengthen the rule 
of law by upholding the Constitution, which is, in fact, the supreme law. The 
executive and legislative limbs of the State are also constitutionally obliged to 
apply the powers and resources at their command, in enforcing the 
Constitution and the rule of law without discrimination or undue favour to any 
person or class. 
10. 
Almost a millennium  before ‘good governance’ and ‘rule of law’ 
became fashionable buzz-words in political discourse, the importance of good 
governance and the rule of law and their direct co-relation with political 
stability was recognized by enlightened rulers. In the Siyasatnama written  by 
Nizam-ul-Mulk Toosi the incident is narrated where the Governor of Hamas 
(in present day Syria) wrote to the Caliph seeking funds to rebuild the 
protective wall to defend the State against its enemies, that is, to ensure the 
stability of the government. The reply  he received is instructive. He was told  
to build the walls of justice i.e. the rule of law and this would ensure peace, 
stability and freedom from the fear of enemies.  
11. 
This brings me to the decisions recorded in the short order of 
16.12.2009 and the detailed reasons for the same. The NRO has been declared 
unconstitutional and void ab initio. It has thus met the fate it richly deserved as 
a black law created and prolonged by the corrupt and malevolent hands of a 
military dictator. The fact that the incumbent democratic government chose not 
to defend such a vile law bodes  well for constitutionalism and the rule of law. 
Const.P.76/2007, etc. 
 
286 
There is, of course, the matter of persons who may be innocent of any wrong-
doing but were victimized due to political vendetta. For such persons this 
judgment ought to be seen as a boon. Instead of living in the shadow of a 
malignant cloud for the rest of their lives, their reputations sullied by the foul 
intervention of a scheming mind, these persons are enabled through this 
judgment to clear their good name of any taint with which they of necessity, 
stood branded on account of the NRO. This indeed would be the most potent 
rejoinder to those who maliciously may have initiated false cases to harm 
their reputations for ulterior political considerations. As the sage Sheikh 
Saadi said centuries ago, in these ageless words:-  
 
12. 
It should also be mentioned that by striking down the NRO the 
Court does not foreclose the possibility or impinge on the prerogative of 
the legislature to enact a non-discriminatory law which can pass 
constitutional muster and is motivated by a desire to bring about a true 
and inclusive reconciliation which is genuinely national in its outreach 
and attempts to bring within its fold disparate groups harbouring valid 
grievances against oppressive and vindictive use of State machinery in 
the past. Even those who may have committed wrongs in the past and 
were not wronged against, are not beyond being redeemed through a 
compassionate law which heals the fissures in the nation’s divided 
polity. These are, however, matters which fall squarely within the 
legislative and executive domains, should these organs of the State wish 
to act.  
13. 
The concept of tauba and sincere repentance coupled with 
restitution of any ill-gotten gains and the expression of genuine remorse 
Const.P.76/2007, etc. 
 
287 
for past excesses provide an age-old matrix for fostering reconciliation. 
It has been applied successfully in ancient as well as modern societies, 
the most recent example being that of South Africa where a Truth and 
Reconciliation Commission has been able to bring about a genuine 
national reconciliation between staunch opponents divided among other 
things, by race and embittered by decades of apartheid. An example of 
national reconciliation also appears in our own nation’s history. This has 
been commented upon in the main judgment. It would, as noted above, 
be for the executive and the legislature to consider the potential and the 
possibilities of what can be achieved by way of reconciliation, as 
opposed to perpetuation of the venom and mutual recriminations which 
continuously divide the nation at the cost of its well-being. This Court, 
however, can only abide by the rule of law and in order to do so it must 
limit itself to the adjudication of controversies in accordance with the 
Constitution and with laws made consistently therewith.  
 
 
 
 
 
 
 
 
 
 
Judge 
Const.Ps.76 to 80/2007 etc. 
 
288 
 
         SARDAR MUHAMMAD RAZA, J.- I had the privilege of 
going through the detailed judgment rendered by Hon’ble the Chief 
Justice. I have no doubt about the conclusion that National 
Reconciliation Ordinance 2007 is violative of all those articles of 
the Constitution referred to in the judgment and is void ab initio. 
2. 
 
Once the NRO 2007 is non est, the obvious legal 
consequence thereof would be that all cases affected thereby shall 
revive from the stage where each was interrupted at. As it is a 
matter of National importance, it has to be taken care of. For this 
purpose this Court has devised a mode of monitoring and also the 
creation of a monitoring cell. This, but for the terminology used, is 
not unusual. I would prefer the mode adopted by the Court in 
normal course of action. 
3. 
 
Many a time, in the given circumstances of a 
particular hearing before this Court, various instructions are 
issued to the executive authorities as well as judicial fora to act in 
a particular manner for just and expeditious disposal of matters 
pending before them. Such orders are issued only during hearing 
of a cause arising out of a matter already pending before lower fora  
at the stage of trial, revision or appeal etcetera.  
4. 
 
Suo Moto or direct action is not taken by the Supreme 
Court about matters at trial stage because most of such Courts are 
under the direct supervisory and administrative control of the High 
Courts. Unless a matter is challenged before it in its Revisional, 
Appellate or Constitutional jurisdiction, even the High Court does 
not interfere with the matters pending at investigation or trial 
stage. The reason is quite obvious and logical that by so doing the 
lower forums are most likely to be influenced thereby, one way or 
the other. This effect is likely to enhance when originating from the 
apex Court. 
Const.Ps.76 to 80/2007 etc. 
 
289 
5. 
 
I am, therefore, of the view that this Court should 
monitor the cases related to the non est NRO 2007 in usual 
manner that it normally adheres to. The normal course is that 
orders are passed and directions issued to the lower forum in a 
matter pending before such forum, during hearing under appellate, 
review or constitutional jurisdiction of this Court. After having 
passed such orders or directions for proper, just and smooth 
disposal of cases, this Court retreats into an aura of judicial 
unconcern, without being over indulgent. 
6. 
 
Whenever any such order passed by this Court is 
violated, the party aggrieved resorts to the Court for redressal of its 
grievances or for rectification of the violation done. The Court 
takes, rather, serious notice of it and comes to the rescue of the 
party, aggrieved through such non compliance.  
7. 
 
Similar should be the normal course about pending 
cases under National Accountability Ordinance. This Court is to 
monitor such cases and pass appropriate orders only when, in 
each particular case, the violation of this judgment, is brought to 
the notice of this Court by any aggrieved party; be the prosecution 
or the defence. It is only after such violation being brought to the 
notice of this Court, that the Honourable Chief Justice may mark 
the same to any bench of this Court, including the Bench 
consisting of the monitoring Judge. 
8. 
 
So far as the idea of suo moto monitoring during the 
stage of investigation or trial is concerned, it has never been 
adhered to by this Court, in its dignity, grace and judicial 
unconcern. We, therefore, should monitor every wrong but on the 
application of the aggrieved party. There are millions of cases 
pending in the trial Courts of the Country but the High Courts or 
Supreme Court do not monitor those cases through a particular 
Const.Ps.76 to 80/2007 etc. 
 
290 
cell unless the wrong done is brought to the notice of the Court. 
NAB cases should not be made an exception. 
9. 
 
I really appreciate, rather envy the apt choice of verse-
selection by my Honourable brother Mr. Justice Ch. Ijaz Ahmed. It 
depicts a phenomenon of universal wisdom; that, in a country 
where the wealth of a poor man is looted, its Ruler has verily gone 
astray and has faltered. The literary or poetic expression of the 
verse is marvelous. Its philosophical aspect is superb. But, at the 
same time, I remained at loss to comprehend as to which “Sultan” 
he really referred to. 
10. 
 
Does he refer to the Sultan during whose regime, the 
loot and plunder had occurred with reference to the dates specified 
in the National Accountability Ordinance? Does he refer to the 
“Sultan” during whose regime not only the loot and plunder 
occurred but the earlier plunders got exonerated through National 
Reconciliation Ordinance 2007? Does he refer to the “Sultan”, who 
according to our own verdict, was also the beneficiary of such void 
law? 
11. 
 
All these queries make me skeptical about many rulers 
but prima dona thereof, according to our judgment, is the maker of 
the National Reconciliation Ordinance, 2007. He was the equal 
beneficiary of the Ordinance as observed by us that, it was a deal 
between two individuals and not a reconciliation at the National 
level. Such deal, in other words, is tantamount to grave violation of 
the Constitution. 
12. 
 
We have much dilated upon but the adventures of one 
set of beneficiaries whose cases, after revival, are supposed to be 
pending before the relevant forums. Any observation by this Court 
about such pending cases shall not affect or influence the trial 
Courts; but what about the beneficiary about whose action, we 
Const.Ps.76 to 80/2007 etc. 
 
291 
have given absolute and conclusive decision, that it was void       
ab initio. 
13. 
 
What about the beneficiary who clearly confessed 
through the Ordinance that many Accountability cases were 
politically motivated, politically indicted, and politically prolonged, 
obviously as a sword of Damocles. If politically motivated, why 
were those indicted. If genuine, why were those dishonestly 
prolonged and no verdict was obtained against the accused 
involved. 
14. 
 
All this, is aimed at bringing home that all 
beneficiaries are to be dealt with accordingly, equally and without 
discrimination. The maker of the Ordinance should also be 
brought to accountability for perpetuating corruption and for 
violating the Constitution. No doubt, such beneficiary is not a 
party to the present petitions but so are the other beneficiaries, 
taken care of in our judgment. Moreover, this Court has, on many 
occasions, given verdict against persons not party to the 
proceedings. All beneficiaries of National Reconciliation Ordinance, 
of the first or the second part, are to be dealt with equally, 
equitably and without discrimination. If one is proceeded against, 
the other must also be. 
15. 
 
At the end, I must appreciate the legal assistance 
rendered by all the learned counsel that appeared to assist this 
Court, especially, the expressively eloquent and materially potent 
discourse of Mr. Salman Akram Raja, the budding Advocate of the 
Supreme Court. 
 
 
(Sardar Muhammad Raza) 
Judge