IN THE SUPREME COURT OF PAKISTAN 
 
(Advisory Jurisdiction) 
 
 
 
 
Present 
 
 
 
Mr.Justice Iftikhar Muhammad Chaudhry, CJ. 
 
 
 
Mr.Justice Javed Iqbal 
 
 
 
Mr.Justice Abdul Hameed Dogar 
 
 
 
Mr.Justice Sardar Muhammad Raza Khan 
 
 
 
Mr.Justice Muhammad Nawaz Abbasi 
 
 
 
Mr.Justice Faqir Muhammad Khokhar 
 
 
 
Mr.Justice Mian Shakirullah Jan 
 
 
 
Mr.Justice M. Javed Buttar  
 
 
 
Mr.Justice Saiyed Saeed Ashhad 
 
REFERENCE NO. 2 OF 2005 
 
Reference by the President of Pakistan 
under Article 186 of the Constitution of 
the Islamic Republic of Pakistan, 1973. 
 
For the President 
 
: 
Mr. Makhdoom Ali Khan, 
 
 
 
 
 
Attorney General for Pakistan. 
 
 
 
 
 
Raja Muhammad Irshad, Dy. Att: Gen. 
 
 
 
 
 
Mr. Nasir Saeed Sheikh, Dy. Att: Gen. 
 
 
 
 
 
Ms. Nahida Mehboob Ellahi, Dy: Att: Gen. 
 
 
 
 
 
Mr. Faisal H. Naqvi, Advocate.  
 
 
 
 
 
Mr. Uzair Karamat Bhandari, Advocate. 
 
 
 
 
 
Mr. Khurram M. Hashmi, Advocate.  
 
 
 
 
 
Mr. M.S. Khattak, AOR.  
 
 
 
 
 
 
For the Government of NWFP: 
Mr. Khalid Anwar, Sr. ASC. 
 
 
 
 
 
Haji M.A. Qayyum Mazhar, AOR. 
 
 
 
 
 
assisted by  
 
 
 
 
 
Mr. Muneeb Akhtar, Advocate.  
 
 
 
 
 
Mr. Bilal Shaukat, Advocate.  
 
 
 
 
 
 
Mr. Younas Tanoli, AG NWFP. 
 
 
 
 
 
Pir Liaqat Ali Shah, Addl: AG NWFP. 
 
On Court notice  
 
: 
Mr. Aftab Iqbal Chaudhry,  
 
 
 
 
 
Advocate General (Punjab). 
 
 
 
 
 
Mrs. Afshan Ghazanfar Asstt: AG(Pb.) 
 
 
 
 
 
Syed Sajjad Hussain Shah, Ass: AG (Pb). 
 
 
 
 
 
Dr. Qazi Khalid Ali, Addl: AG Sindh. 
 
 
 
 
 
Mr. Salah-ud-Din Mengal, AG (Balochistan)  
 
 
 
 
 
 
Dates of hearing  
 
: 
1st, 2nd, 3rd, and 4th August, 2005. 
 
 
 
 
 
………………………… 
 
 
 
Reference No.2/2005 
2
 
 
 
 
OPINION 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ. –   The President 
of Pakistan has referred the following questions of law for opinion of 
this Court under Article 186 of the Constitution of the Islamic 
Republic of Pakistan, 1973 (hereinafter referred to as the 
Constitution):- 
“i) 
Whether the Hisba Bill or any of its provisions 
would be constitutionally invalid if enacted? 
 
ii) 
Whether the Hisba Bill or any of its provisions, 
would, 
if 
enacted; 
be 
violative 
of 
the 
fundamental rights guaranteed in Part-II, 
Chapter 1 of the constitution, including but not 
limited to Articles, 9, 14, 16 to 20, 22 and 25 
thereof? 
 
iii) 
Whether the Hisba Bill or any of its provisions 
would, if enacted, be violative of Articles 2A, 4, 
203G, 212, 229 and 230 of the Constitution? 
 
iv) 
Whether the enactment of the Hisba Bill would 
encroach on an occupied field, violative of the 
Constitution by creating a parallel judicial 
system, undermine judicial independence and 
deny citizens their right of access to justice? 
 
v) 
Whether the enactment of the Hisba Bill would 
violate the principle of separation of powers 
enshrined in the Constitution? 
 
vi) 
Whether the Hisba Bill, and in particular 
Sections 10 and 23 thereof, is unconstitutionally 
overbroad and vague and suffers from excessive 
delegation? 
 
vii) 
If the answer to any one or more of the above 
questions is in the affirmative, whether the 
Governor, NWFP is obliged to sign into law the 
Hisba Bill passed by the NWFP Assembly?” 
 
2. 
Precisely stated, the circumstances which necessitated the 
seeking of opinion from this Court by the President of Pakistan, are 
that on 19th June, 2003, a draft Bill titled “HISBA BILL” was 
submitted under the N.W.F.P Rules of Business, 1985, to the 
Governor of NWFP for his approval prior to its presentation before 
the N.W.F.P Assembly. The Governor returned the draft bill to the 
Reference No.2/2005 
3
N.W.F.P Government (hereinafter referred to as the Provincial 
Government) on 26th June, 2003, with the advice that before moving it 
for leave to introduce, it may be appropriate, inter alia, to take the 
following into consideration:- 
(i) 
It is an established principle that 
legislation should be precise, clear and 
unambiguous so that the legitimate 
rights of the citizens are protected from 
the abuse or excess of powers vested in 
an authority. The draft bill in its present 
form is vague, more particularly the 
powers envisaged to be vested in the 
proposed Mohtasib. This lack of clarity 
and precision could lead to unnecessary 
and unlawful infringement of the rights 
of the citizens besides intrusion in the 
realm of such areas of private morality 
which may neither be desirable nor just 
and fair. Moreover, terms used in the 
draft Bill need to be clearly defined, 
such as, inter-alia, un-Islamic social 
etiquettes, Islamic moral values, respect 
and etiquettes for prayers etc. 
 
(ii) 
Islam is indeed a complete code of life 
and any legislation in the name of Islam 
has to be exercised with caution and 
utmost care because if the powers 
thereunder are abused it inevitably 
damages the image of a dynamic 
religion. The draft Bill envisages to give 
wide 
discretionary 
powers 
to 
the 
proposed Mohtasib, particularly in 
section 23 thereof, however the powers 
have been vaguely worded. Such wide, 
vague 
and 
loosely 
worded/drafted 
legislation 
will 
inevitably 
cause 
immense difficulties for the citizens 
besides jeopardizing their civil liberties, 
privacy and constitutional rights. 
 
Reference No.2/2005 
4
(iii) 
The EXPLANATION to sub-section (iii) 
of section 2 of the proposed Bill 
categorically points out that this law 
would be invoked, when no other legal, 
judicial or administrative remedy is 
available. Contrary to it, five cases 
mentioned in sub-section (v) of Section 2 
and various sub-sections of Section 9 
are dealt by comprehensive Efficiency & 
Disciplinary laws/rules, NAB Ordinance 
and other punitive laws/rules.  
 
(iv) 
There are valid and enforced laws 
relating 
to 
most 
of 
the 
powers 
mentioned in section 23 of the draft Bill. 
All such laws, inter-alia, relating to 
employment of children, Ehtaram-e-
Ramazan, 
hoarding 
and 
black 
marketing, 
prohibition 
of 
wasteful 
expenditure in marriages, weights and 
measures, prevention of cruelty to 
animals, 
gambling, 
regulation 
of 
loudspeakers, vagrancy, price control 
and prevention of profiteering and many 
others are not only in existence and 
enforced by various institutions and 
authorities are provided there-under for 
administering these laws and the 
expenditure for which is paid by the 
exchequer. There is a need to examine 
all the laws, which are already in 
existence, and to make the respective 
executing authorities/ agencies more 
effective and accountable rather than 
creating 
parallel 
institutions 
and 
authorities in haste and vesting them 
with unbridled and vague powers. This 
would neither be in the interest of good 
governance or the citizens. Moreover, it 
will be an unnecessary burden on the 
already strained exchequer of the 
province.  
 
Reference No.2/2005 
5
(v) 
The draft bill proposes to touch upon 
certain laws which fall under the 
domain of Federal Legislation, inter-
alia the Police order. Section 2 sub-
section (iii) read with Section 20 of this 
proposed Bill refers to creation of Hisba 
force which is contrary to the Police 
Ordinance, 
2002. 
Any 
change/ 
amendment in this Order would require 
permission 
from 
the 
President 
of 
Pakistan as it is included in Schedule-VI 
of the 1973 Constitution of the Islamic 
Republic of Pakistan.  
 
(vi) 
Prior approval of the President would 
be required for extension of the 
proposed 
law 
to 
Provincially 
Administered Tribal Areas (PATA). It is 
therefore advisable to consult the 
Federal Government through Law and 
Justice Division and Interior Division 
before taking further action on the 
proposed bill.  
 
(vii) 
Vide sub-section (16) of Section 2 of the 
proposed 
Bill, 
the 
definition 
of 
journalist is very vague. It accepts any 
person as a journalist who is MA 
(Journalism) or has attachment with 
journalism for ten years irrespective of 
the fact whether he holds journalism 
degree or any other such equivalent 
qualification. 
 
(viii) 
The proposed appointment and removal 
of the Mohtasib and the procedure for 
conducting inquiries and investigations 
also need to be reviewed so as to make 
the respective procedures transparent 
and more accountable.  
 
(ix) 
The matter being of a sensitive and 
important nature, instead of legislating 
in a haste, as a first stage the treasury 
benches may consider seeking the 
opinion of the Council of Islamic 
Ideology for the purposes of Article 230 
Reference No.2/2005 
6
of the Constitution in respect of all the 
existing laws relating to the proposed 
powers enumerated in the draft Bill and 
to seek recommendations as to the 
measures of bringing such existing laws 
in conformity with the injunctions of 
Islam. In the second stage, clear precise 
and unambiguous legislation may be 
proposed in relation to areas/issues, 
which are not covered in the existing 
laws. It would also require taking into 
consideration 
prudent 
and 
diligent 
regard vis-à-vis the exchequer.”   
 
3. 
The Provincial Government in compliance with the above 
advice of the Governor, agreed to refer the matter to the Council of 
Islamic Ideology (hereinafter referred to as CII). The CII rendered its 
opinion and pointed out inherent defects in the proposed legislation 
and specifically stated that the draft Hisba Bill violated a number of 
constitutional provisions and was capable of being exploited for 
political motives. The opinion of the Council was communicated to the 
Provincial Government on 18th September, 2004. The Provincial 
Government, without taking into consideration the opinion of the CII, 
tabled the draft Hisba Bill in the N.W.F.P Provincial Assembly on 11th 
July, 2005 and got it approved. The Governor of NWFP, on 11th July, 
2005, requested the Prime Minister to make a request to the President 
of Pakistan for making a Reference to this Court for its opinion on the 
constitutionality of the draft Hisba Bill under Article 186 of the 
Constitution as serious questions of law of public importance are 
involved in the matter.  
Reference No.2/2005 
7
4. 
In the light of the request of the Governor and the attending 
controversy, the Hisba Bill which generated serious and substantial 
questions of constitutionality of fundamental human rights, the Prime 
Minister of Pakistan was pleased to advise the President of Pakistan 
to seek opinion of this Court and refer the above questions of law of 
public importance for opinion on the constitutionality of the draft 
Hisba Bill. As this Court is required to give its opinion about the 
constitutionality of the draft Hisba Bill, therefore, it is deemed 
appropriate to reproduce herein-below the following provisions from 
the draft Hisba Bill:- 
 
“ A BILL to provide for the establishment of the institution 
of Hisba in the North-West Frontier Province. 
 
WHEREAS sovereignty over the entire Universe belongs to 
Almighty Allah alone and the authority to be exercised by the 
people of Pakistan through their chosen representatives within the 
limits prescribed by Him is a sacred trust;  
 
AND WHEREAS implementation of Islamic way of life revolves 
around Amer-bil-Maroof and Nahi-unal-Munkir and to achieve 
this objective it is necessary apart from other steps to establish an 
institution of accountability which could keep a watch on securing 
legitimate rights of various classes of the society, including 
females, minorities and children and to protect them from 
emerging evils and injustices in the society; 
 
AND WHERE it is further necessary to extend the jurisdiction of 
Mohtasib to Government’s administration and offices in order to 
have a check upon injustices, abuse of powers and other similar 
excesses; 
  
It is hereby enacted as follows : 
“1.   .Short title and commencement 
(1) This Act may be called the North-West Frontier 
Province Hisba Act, 2005. 
(2) It shall extend to whole of the North-West Frontier 
Province. 
(3) It shall come into force at once. 
2. Definitions. --- In this Act, unless the context otherwise 
requires,  
 
(a) 
“Agency” means a Department, Commission or 
any office of Provincial Government, a Corporation or 
similar 
other 
institutions 
which 
the 
Provincial 
Government may have established or which may be 
working under its control, the Secretariat of the 
Provincial Assembly of the North West Frontier 
Province, but does not include the High Court and the 
Courts working under its administrative control; 
Reference No.2/2005 
8
 
(b) 
 “Amer-bil-Maroof” 
means 
fulfilling 
the 
obligations of enjoining the good as laid down in Holy 
Quran and the Sunnah; 
(c)………………………………………………………………. 
(d)………………………………………………………………. 
(e)………………………………………………………………. 
(f)………………………………………………………………. 
(g)………………………………………………………………. 
(h)………………………………………………………………. 
(i) 
“Mal-administration” 
includes 
all 
such 
decision, 
processes, 
recommendations, 
acts 
and 
deficiencies which – 
 
(i)  
Is contrary to law, rules or regulations 
or is a departure from established 
practice or procedure, unless it is bona 
fide and for valid reasons; or  
 
(ii) 
Is perverse, arbitrary, unreasonable, 
unjust, 
biased, 
oppressive 
or 
discriminatory; or  
 
(iii) 
Is based on irrelevant grounds; or  
 
(iv) 
Involves the exercise of powers or the 
failure or refusal to do so, for corrupt or 
improper motives, such as bribery, 
jobbery, 
favoritism, 
nepotism 
and 
administrative excesses; or  
 
(v) 
Amounts to negligence, inattention, 
delay, incompetence, inefficiency and 
inaptitude in the administration or 
discharge of duties and responsibilities;  
(j)………………………………………………………………. 
(k) 
“Nahi-unal-Munkir” 
means 
fulfilling 
the 
obligations of forbidding the evil as laid down in the 
Holy Quran and the Sunnah; 
(l)………………………………………………………………. 
(m)……………………………………………………………… 
(n) “Provincial Advisory Council” means the Council 
established under this Act; 
(o) ………………………………………………...……………. 
 
 
 
(p)………………………………………………………………. 
(q)………………………………………………………………. 
(r)………………………………………………………………. 
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5………………………………………………………………….. 
6…………………………………………………………………. 
7…………………………………………………………….. 
8…………………………………………………………….. 
9…………………………………………………………….. 
10. 
Powers and duties of Mohtasib. 
 
The Mohtasib shall, on a written complaint of any person, or on 
reference from the High Court, the Supreme Court or the 
Provincial Assembly, or suo motu, shall have the power to-  
(a) 
Enquire 
into 
the 
allegations 
of 
mal-
administration against any Agency or its employees:  
 
Reference No.2/2005 
9
Provided that no Government servant, during his service, shall 
be entitled, in relation to affairs of his employment, to lodge a 
complaint with the Mohtasib; 
 
(b) 
Protect/watch the Islamic values and etiquettes 
at the provincial level; 
 
(c) 
Watch the media established by Government or 
working under the administrative control of Government 
to ensure that its publications are useful to the purpose 
of upholding Islamic values; 
 
(d) 
Forbid persons, Agencies and authorities 
working under the administrative control of Government 
to act against shariah and to guide them to good 
governance;  
 
(e) 
Formulate such directives and principles, which 
may help in making the conduct of authorities working 
under this section to be effective and purposeful; 
 
(f) 
Extend help to the provincial administration in 
discharging its functions smoothly and effectively; 
provided that the Mohtasib shall not interfere in any 
mater which is sub-judice before a court of competent 
jurisdiction or which relates to external affairs of 
Pakistan or the relations or dealings of Pakistan with 
any foreign State or Government or relates to or is 
connected with the defence of Pakistan or any part 
thereof, the Military, Naval and Air Forces of Pakistan 
or the matters covered by laws relating to these forces; 
 
(g) 
For the purposes of attaining the objectives of 
this Act, with particular reference to doing away with 
the mal-administration and to remove social injustices, 
take steps for providing facilities of training, study and 
research; and  
 
(h) 
Mohtasib shall, in the discharge of his duties 
and functions, be entitled to engage the services of 
experts and Consultants with or without remuneration. 
11…………………………………………………………… 
12. 
Implementation of orders, etc. 
 
(1) 
On completion of the action in relation to a 
complaint, the Mohtasib shall have the power to issue 
directive to the competent officer of the Department 
concerned for its implementation and may, at the same 
time, take up such steps as he considers expedient. The 
concerned Agency within the time limit mentioned in the 
directive, inform the Mohtasib about the action taken in 
that behalf, failing which the concerned Agency or 
competent officer, on the recommendation of the 
Mohtasib, shall render itself or himself, as the case may 
be, to the following actions: 
 
(a) One or more actions under the law relating 
to removal from Service; 
(b) In case of non-cooperation with the 
Mohtasib or his staff during investigation, legal 
action for interference in smooth functioning of 
Government. 
Reference No.2/2005 
10
(c) Where the Mohtasib is satisfied in respect of 
a complaint under consideration that any 
functionary of Government has committed a 
cognizable offence or rendered himself to civil 
liability, he shall direct the concerned Agency to 
initiate action as aforesaid in accordance with 
law. 
 
(2) 
In case of non-compliance of the directive of the 
Mohtasib, he shall refer the matter to Government, 
which shall ensure its compliance and inform the 
Mohtasib of its compliance.  
 
(3) 
A report of such non-compliance of the official 
shall form part of his personal file. 
 
(4) 
The official concerned shall have the right of 
representation to the Chief Minister within a period of 
30 days from the date of recommendation under sub-
section(1). 
 
 
14. 
Contempt of Mohtasib . 
 
The Mohtasib shall mutatis mutandis have the same powers 
which are available to the High Court to punish a person 
who- 
 
(a) 
Hinders or becomes a source of 
hindrance in the smooth proceedings before the 
Mohtasib or does any act causing difficulties in 
the completion of such proceedings; 
 
(b) 
Gives such statement which defames 
Mohtasib, 
or 
any 
of 
his 
officials 
or 
representatives; 
 
(c) 
Acts in a manner which, in relation to 
proceedings before the Mohtasib, influence the 
mind of the Mohtasib to take a partial decision; 
or 
 
(d) 
Acts in a manner which, under any law 
for the time being in force, falls within the 
definition of contempt; provided that any 
comments made in good faith and in the public 
interest on any act or on report of the Mohtasib 
or his employer or representative shall not be 
treated as contempt. 
 
(2) 
The person aggrieved against any order of the 
Mohtasib under sub-section (1) may, within thirty days 
of such order, appeal in the High Court, which shall be 
heard by a Division Bench of the said Court. 
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16………………………………………………………...
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Reference No.2/2005 
11
23. 
Special powers of Mohtasib. 
 
 
Without prejudices to the powers conferred by 
section 10, the Mohtasib shall have the following 
powers:- 
 
(i) To monitor adherence of moral values of 
Islam at pubic places; 
 
(ii) 
To discourage Tabdhir or extravagance, 
particularly at the time of marriages and other 
family functions; 
 
iii) 
To follow code of Islam in giving dowry; 
 
(iv) 
To discourage beggary; 
 
(v) 
To monitor adherence of Islamic values 
and its respect and regard at the times of ‘Iftar” 
and Taravih’; 
 
(vi) 
To discourage entertainment shows and 
business transactions at the times of Eideen and 
Jumma’ah prayers around mosques where such 
prayers are being held; 
 
(vii) 
To remove causes of dereliction in 
performance and proper arrangement of Eidain 
and Jumu’ah prayers; 
 
(viii) 
To discourage employment of under-age 
children; 
 
(ix) 
To 
remove 
unnecessary 
delay 
in 
discharge of civil liability which is not disputed 
between the parties; 
 
(x) 
To prevent cruelty to animals; 
 
(xi) 
To remove causes of negligence in the 
maintenance of mosques; 
 
(xii) 
To observe decorum of Islam at the 
times of Azan and Fard prayers; 
 
(xiii) 
To prevent misuse of loud-speakers and 
sectarian speeches in mosques; 
 
(xiv) 
To discourage un-Islamic and inhuman 
customs;  
 
(xv) 
To check the tendency of indecent 
behaviour 
at 
public 
palaces 
including 
harassment of female; 
 
(xvi) 
To eradicate the deal as profession in 
‘Taweez’, ‘Gunda’, palmistry, sorcerery, etc; 
 
(xvii) 
To protect the rights of minorities, 
particularly to regard the sanctity of their 
religious places and places where they perform 
their religious ceremonies; 
 
Reference No.2/2005 
12
(xviii) To eliminate un-Islamic traditions which 
effect the rights of women, particularly taking 
measures against their murder in the name of 
‘Ghairat’, to remove the tendency of depriving 
them of their rights of inheritance, to eliminate 
the tradition of ‘sura’, and to protect their rights 
conferred by Shariah and law; 
 
(xix) 
To monitor weights and measures and 
eliminate impurity; 
 
(xx) 
To eliminate artificial price-hike; 
 
(xxi) 
To protect Government properties; 
 
(xxii) 
To eliminate bribery from Government 
Departments/offices; 
 
(xxiii) To incite feelings of service to people at 
large amongst Government functionaries; 
 
(xxiv) To advise those who are found to be 
disobedient to their parents; 
 
(xxv) 
To perform any other function or 
functions 
which 
the 
Provincial 
Mohtasib 
determines from time to time in consultation 
with the Advisory Council; 
 
(xxvi) To mediate amongst parties and tribes 
in matters pertaining to murders, attempts to 
murder and similar other crimes threatening to 
law and order situation.  
(xxvii)  To perform any other function/functions 
which the Provincial Mohtasib determines from 
time to time in consultation with the Advisory 
Council.  
24………………………………………………………... 
25. 
Restriction on the rights of hearing. 
 
(1) 
No court or authority shall be competent to 
question the legal status of the proceedings before a 
Mohtasib.  
 
(2) 
No court or authority shall have the power to 
pass any injunction or any interim or a stay order with 
regard to any matter under consideration of the 
Mohtasib.  
 
(3) 
No suit or legal proceeding shall lie against the 
Mohtasib or his employees for anything in good faith 
done or intended to be done.  
 
26………………………………………………………... 
27………………………………………………………... 
 
28. 
Offences to be non-cognizable. 
 
(1) 
Defiance of the order of the concerned Mohtasib 
in the performance of his duties under section 23 of this 
Act shall be a non-cognizable offence punishable with 
Reference No.2/2005 
13
imprisonment for a term up to six months and a fine up 
to two thousand rupees. No court shall take cognizance 
of an offence under this section, except on a complaint in 
writing of the Mohtasib or his authorized representative.  
(2) 
The offence under sub-section (1) shall be tried 
by the court in accordance with Code of Criminal 
Procedure, 1898 (V of 1898) and the order shall be 
appealable.  
 
 
29………………………………………………………….. 
 
 
30………………………………………………………….. 
 
 
31………………………………………………………….. 
 
5. 
Notices were issued to the Provincial Government of NWFP 
through Chief Secretary as well as Secretary Assembly, its Advocate 
General as well as the Advocates Generals of all other Provinces.  
6. 
“Hisba” is an Arabic word, which in the plain language means “to 
count” or “accountability” or “to prohibit from evil things,” as per 
available literary sources. The Institution of the office of “Hisba” did not 
exist at the time of Holy Prophet (PBHU) and the Khulafa-e-Rashideen. 
Initially the office of “Amil al-suk” was created by “Umayyads” to 
regulate markets. However, later on it was expended into the office of the 
“Mohtasib” by the “Abbasids.” Reference in this behalf may be made to 
the following:--- 
 
1.  An Introduction to Islamic Law ” 
 by Joseph Schacht 
 
“…………The office of the ‘inspector of the market' 
(ayopavouos, in Arabic amil al- suk or sahib al-suk, a literal 
translation) who had a limited civil and criminal jurisdiction; 
it was later, under the early 'Abbasids’ to develop into the 
Islamic office of the muhtasib. Similarly, the Muslims took 
over from Sassanian administration the office of the ‘clerk of 
the court' who became an assistant of the kadi; this was well 
known to the ancient authors.” 
 
2.     “A history of Islamic Law ” 
by N.J Coulson  
 
“One particular administrative office taken over by the 
Umayyad regime was that of the Byzantine market inspector, 
or agronomos. This official, bearing the equivalent Arabic 
title of ‘amil as-suq, possessed limited powers of jurisdiction  
 
 
Reference No.2/2005 
14
concerning such things as weights and measures used in the 
market and petty offences committed there. At a later stage  he 
was entrusted with the peculiarly Islamic function of hisba, or 
the duty of safeguarding the proper standards of religious 
morality. Accordingly he now took the title of muhtasib, but 
still retained the market-place jurisdiction as a legacy of his 
historical origin.” 
 
 
3.    “A History of the Arab People” 
 by Albert Hourani 
 
“…………In the market there was a special official, the 
muhtasib, who supervised prices, weights and measures, the 
quality of goods and the conduct of business; his authority 
was derived from, a verse of the Qur’an which enjoined upon 
Muslims the duty of 'bidding unto good and rejecting what is 
disapproved', and in some circumstances he was appointed 
from among the religious class, but in others from the  
military………” 
 
 
4. “Islami Riasat Main Mohtasib Ka Kirdar ” 
by Dr. M.S. Naz. 
 
 
 
 
8. 
To substantiate the above definitions, a good number of books can 
be quoted including “the Concept of Administrative Accountability in 
Islam” by Dr. Riaz Mehmood, Urdu Daira Ma’arif-e-Islamia (Urdu 
Encyclopedia of Islam) Vol. VIII, published under the auspices of 
University of Punjab Lahore, “Ehkamul Sultania” by Imam-Abul-Hassan 
Bin Muhammad Bin Habib-e-Baseeri (translated by Maulvi Syed 
Muhammad Ibrahim), “Adbul Qazi” by Dr. Mehmood Ahmed Ghazi, 
Edarai-e-Tehkekqat-e-Islami, “Badae-ul-Sana’ay” by Alama Allauddin 
Abubakar Bin Sulemani (translated by Prof. Khan Muhammad Chawla) 
and  “The Concise Encyclopedia of Islam” by Cyril Glasse. Relevant 
portion from the last mentioned book is reproduced below:- 
Reference No.2/2005 
15
“Muhtasib. A public functionary whose task, as it has 
existed since 'Abbasid times, has been that of 
supervising the merchants' quality and prices. The 
muhtasib checks and verifies weights and measures and 
the use of materials in crafts. He gives expert appraisal 
of the value of cloth, rugs, woven articles brass and 
copper utensil. These estimates are not binding as a 
price between buyer and seller, but are indicative of the 
fair market price. The muhtasib is still found in some 
traditional markets.” 
9. 
A study of the definitions of “Hisba” from the above books indicates 
that although it was a very old institution but its inception is not well 
known. Some of the authors, as is evident from the above definitions, say 
that in the beginning, the terms “Hisba” and “Mohtasib” were not used 
but the terms “Sahib al-Suk” or “Amil ul-rusul ” [incharge of Trade or 
Trade administrator/administrator of streets] were used. The word “Sahib 
ul-Suk” is said to be a translation of Greek term. However, history reveals 
that the term “Mohtasib” was started to be used instead of “Sahib ul-Suk” 
during the Khilafat of “Qazi Mamoon-ur-Rashid” and the “Mohtasib” 
used to look-after the market business in addition to his religious duties, 
such as to bring reformation in social life. A careful perusal of the 
documents on the subject, clearly depicts the fact that duties of the 
“Mohtasib” were to inspect instruments of the scales of weights and 
measures. These scales were so complicated and different that the peoples 
could easily deceive each other. In addition to it he had also to keep a 
vigilant eye over each kind of shortcoming and dishonesty that could be 
committed during the preparation and sale of commodities. It is also 
evident from the history books that keeping in view economic conditions of 
Muslims, the “Mohtasib” used to check prices of the goods but he had no 
power to determine them. He had also to ensure that construction and 
repairing of houses and the shops would not endanger the peace of the 
Reference No.2/2005 
16
public or cause hurdles in the way of pedestrian and traffic. Streets 
cleanliness, repair of shelters for commuters and supply and drainage of 
water were amongst his duties and due to such functions “Mohtasib” in 
Islamic period used to be considered a City Officer. Unfortunately, at the 
end of middle ages, with the economic downturn and social crises, the 
office of “Mohtasib” started loosing its respect. During the era of 
“Mamlik” sometime the posts of Mohtasib, like other institutions, were 
grabbed by giving bribes. The buyer of this office reimbursed this money by 
imposing illegal levies. Eventually, fighting started to occur among the 
contenders of this post. Sometime this post was given to an Army Officer in 
reward to his performance or from strategic point of view. This office 
remained established in Muslim countries till the inception of 20th Century. 
It is most important to note that the office of “Mohtasib” effectively 
functioned, even when there was no codified law and there were no regular 
Governments to control the State affairs, to spread virtues and battle 
against evils as per the comprehensive meanings of the word “Hisba.” In 
this behalf every Muslim can act as “Mohtasib” for himself as well as for 
others, in view of the Injunction of Holy Quran, (Surah Al-Imran verse 
104), translation of which is “And there must be a section among you to 
call towards good, to order the right and prevent the bad.”  Similarly, 
Holy Quran in Surah Al-Nisa verse 59 ordained “O Muslims, obey Allah, 
His Prophet (PBUH) and those in authority from amongst you.” Dr. Riaz 
Mehmood in his book “the Concept of Administrative Accountability in 
Islam,” while taking into consideration both these Injunctions of Holy 
Quran and dealing with the subject of “Hisba” and “Legislature” (Chapter 
IX page 173), has opined as follows:- 
“………...In the third verse it is emphatically proposed 
that there must be a body to call to good, to beneficial 
Reference No.2/2005 
17
state of affairs, to order good and to check bad. Lastly the 
men in authority or the men who have been assigned 
some work, who have been deputed or are engaged in the 
task of some peremptory nature must be obeyed. So a 
representative or consultative body has been provided. In 
Ul-Al-AMR the legislature, the executive and judiciary all 
are encompassed.  
Dr. Sabhi Mehmasani has concluded by referring 
to many Quranic verses and traditions that Ijma is an 
admitted and proved source of Islamic law. 
So the entity of Shura is established. Hadrat 
Umer formed a Shura.   
It has also been discussed in the preceding 
chapters that the Holy Prophet (P.B.U.H.) and the rightly 
guided Caliphs conducted Ihtisab themselves. lhtisab of 
the public and officials had all along been there. 
However the nomenclature Muhtasib, appeared in the 
time of Caliph Mehdi. 
 The muhtasib and the shura are therefore to 
consult each other. Hisba and shura may coincide in a 
single body notwithstanding whatever qualification of 
piety or fiqh be laid down for them. Muhtasib is a 
successors wing of the ruler and the legislature i.e. 
parliament is the successor of shura.  
Shura's link as mentioned in the encyclopaedia be 
reproduced below. 
"Linked with these tasks was another 
which has caused modern scholars to 
stress the view that the traditions of 
antiquity concerning the councillors of 
the town were perpetuated in the duties 
of the Muhtasib.” 
  
The councillor is the representative of the urban 
electorate at the local councils level. He too is often 
elected on party basis. The members of the parliament 
have comparatively larger constituencies. The functions 
are almost the same. They attend to the small disputes of 
the voters, redress their complaints and are the overall 
overseers of public officials. The councillors are also 
invested with some judicial matters.  
The legislators move the bills in parliament 
keeping in view the problems of their respective areas. 
The parliament of Pakistan is officially called MAJLIS-I-
SHURA.  
Reference No.2/2005 
18
Thus the members of the parliament (Legislature) 
themselves act as Muhtasibs in their areas and also 
advise the rulers. 
In all countries where there is parliamentary 
form of government, the parliament (Legislature) almost 
acts as the Muhtasib of the executive. The same is the 
position in Pakistan. The relevant articles of the 
constitution of Islamic republic of Pakistan be referred in 
this respect. 
"Article 9: THE CABINET  
 
1. There shall be a cabinet of ministers 
with the Prime Minister at its head, to 
aid and advise the president in the 
exercise of his functions."  
 
4. The cabinet, together with the 
Minister of State, shall be collectively 
responsible to the National Assembly.” 
   
There is a bit of difference between the 
Ombudsman and Hisba, which would be discussed in 
chapter xi. However their relationship with the 
Legislature is almost the same. An excerpt from the 
annual report of Wafaqi Muhtasib of Pakistan, 1992 may 
be adverted to in this connection.  
 
WAFAQI MOHTASIB VIS-A-VIS THE PARLIAMENT: 
  
The institution of Wafaqi Mohtasib was 
established through a presidential order 
in 1983 (p.o. of 1983), during the days 
when the country was under Martial 
Law. The Ombudsman law thus does not 
stipulate linkage between this institution 
and the parliament which has created a 
contradiction in the context of the 
world-wide 
practice 
in 
similar 
institutions. In all the countries of the 
world, where this institution exists, the 
Ombudsman is considered to be a 
Parliamentary watchdog operating in 
administrative domain on behalf of the 
Parliament, to which alone he is 
responsible. 
  
After the restoration of democracy in Pakistan in 1985, 
this office has continuously been demanding creation of 
formal linkage between this institution and the parliament 
either through a constitutional amendment or by setting 
up of a Public Administration Committee of the 
Parliament, on the pattern of Public Accounts Committee 
but to no effect. All efforts seem to have been wasted. 
Reference No.2/2005 
19
Committee of this nature, would not only act as a liaison 
between the Mohtasib and the Parliament but would also 
provide necessary guidance and support to this institution 
in the performance of its functions in various fields. 
Matters relating to the Ombudsman institutions like its 
Annual report, budget proposal and amendments in the 
law, prudence demands, are required to be scrutinized 
first by that committee for the purposes of evolving 
bipartisan consensus before these are placed before the 
Parliament for consideration.  
 
10. 
NWFP Assembly, despite having all functional democratic 
institutions under the Constitution, intended to establish the institution of 
“Hisba,” as per draft Hisba Bill. Its preamble identifies the following two  
objects :---  
“i) 
Whereas implementation of Islamic way of life revolves 
around Amar-bil-Maroof  and Nahi-unal-Munkir and to 
achieve this object, it is necessary apart from other steps 
to establish an institution of accountability, which could 
keep a watch on securing legitimate rights of various 
classes of the society, including females, minorities and 
children and to protect them from emerging evils and 
injustices in the society; 
ii) 
And whereas it is further necessary to extend the 
jurisdiction 
of 
Mohtasib 
to 
Government’s 
administrations and Offices in order to have a check 
upon injustices, abuse of powers and other similar 
excesses.    
A careful perusal of above preamble demonstrates that the “Hisba Bill” 
was drafted to achieve two-fold objectives; one to establish an institution of 
accountability to fulfil the command of “Amar-bil-Maroof and Nahi-unal- 
Munkir,” as far as personal lives of the different segments of the society are 
concerned; and second to extend the jurisdiction of “Mohtasib” to official 
affairs of the Provincial Government. So far as the second part is 
concerned, its object seems to be inline with the legislation already 
available on the subject i.e. the Establishment of Office of the Wafaqi 
Reference No.2/2005 
20
Mohtasib Order 1983, which has been mandated by the Constitution under  
Item 13 of the Federal Legislative List; Establishment of the Office of 
Ombudsman for the Province of Balochistan Ordinance, 2001; Punjab 
Office of the Ombudsman Act, 1997; Establishment of the Office of 
Ombudsman for the Province of Sindh Act, 1991, respectively. Definition 
clauses in the “Hisba Bill” and the other laws on the subject, relating to 
mal-administration in Government offices, are identical in substance. 
11. 
 The concept of Ombudsman has been discussed in a “Commentary 
on Ombudsman” by Mubeen Ahmed Khan, substance whereof is that it is 
an institution which takes care of a large segment of population or the 
large number of the residents against the mal-administration of the 
Government functionaries. Dr. Riaz Mehmood in “The Concept of 
Administrative Accountability in Islam” in chapter Ombudsman: concept 
and growth: has described that Ombudsman is a person or an office which 
on complaint or reference or even suo motu can look into administrative 
actions, omissions and commissions of Government or Semi-Governmental 
agencies, affecting their subjects in case they in their own place term them 
a partial, improper, arbitrary, oppressive, harsh, discriminatory, biased, 
victimizing, or the result of neglect, lethargy or incompetence, and after 
necessary investigation, offer possible redressal, within statutory spheres. 
Three renowned scholars on the subject i.e. Geraled E. Caiden, Nail 
Macdermot and Ake Sandler have detailed the concept of Ombudsman in 
lucid manner: “ a new and to many people, a foreign word is being heard 
more frequently, it is “Ombudsman.” A term that refers to special office or 
officer to whom people can go with their grievances about the way their 
business with large anonymous bureaucracies has been handled. The 
Ombudsman records public complaints, investigates them, and reports the 
Reference No.2/2005 
21
findings to the complainants and the organizations investigated. Should any 
wrong be discovered, it is expected that it will be put right, if not to the 
complete satisfaction of aggrieved party, then at least better than it would 
have been without the Ombudsman’s intervention. For the public, the 
Ombudsman is a welcome device for assuring that justice is done and that 
bureaucracies treat their clients fairly, promptly and respectfully. For 
bureaucracy, it is an additional failsafe check on their operations, thus it 
provides additional protection for both public and bureaucracy, something 
that seems required as the transactions between them multiply.” 
12. 
It may be noted that in Pakistan, besides the offices of Ombudsman 
referred to herein before, at the Federal level, there is yet another office of 
Tax Ombudsman, established under Ordinance No.XXXV of 2000 titled as 
Establishment of Office of Federal Tax Ombudsman Ordinance 2000. The 
objects and the functions of the Tax Ombudsman are to diagnose, 
investigate, redress and rectify any injustice done to a person through mal-
administration by functionaries, administering tax law. Thus, establishment 
of Federal and Provincial Ombudsman Offices including the Tax 
Ombudsman, are successfully serving the object of checking mal-
administration in Government offices on the complaints of aggrieved 
persons. 
13. 
The Government of NWFP is legally bound to establish the offices of 
the Zilla Mohtasibs, under Section 134 read with Third Schedule of the 
NWFP Local Government Ordinance, 2001. The functions and purposes of 
the Zilla Mohtasib are enumerated as follows :-- 
134. 
Zilla Mohtasib.  
(1) 
Without prejudice to the provisions as contained 
in the North-West Frontier Province end enactment 
regarding Provincial Mohtasib, in every district there 
may be a Zilla Mohtasib. 
Reference No.2/2005 
22
(2) 
The Zilla Mohtasib shall redress citizen’s 
complaints against mal-administration of the holders of 
public offices in the local governments within the 
district. 
Explanation. 
For the purpose of this section, the 
expression ‘holders of public office’ includes all 
functionaries of the District Government, Tehsil 
Municipal 
Administration, 
Union 
Administration, 
Nazimeen, Naib Nazimeen, District Police Officers and 
officials, members of the Councils and all officials of the 
Council. 
(3) 
All holders of public offices shall aid and assist 
the Zilla Mohtasib in exercise of his functions. 
(4) 
The Zilla Mohtasib shall hold office for a term 
of four years and shall be eligible for reappointment for 
a similar term. 
(5) 
The Zilla Mohtasib may resign his office by 
writing under his hand addressed to the Zilla Council 
through Naib Zilla Nazim. 
(6) 
The manner of selection, appointment, removal, 
terms and conditions of service, functions, and powers of 
the Zilla Mohtasib and procedures relating thereto shall 
be as given in the Third Schedule. 
14. 
The NWFP Local Government Ordinance, 2001 has constitutional 
protection as its alteration, repeal or amendment, without the previous 
sanction of the President, has been prohibited under Article 268 (2) read 
with Sixth Schedule of the Constitution of the Islamic Republic of Pakistan.  
15. 
A comparative study of the duties and the powers of Zilla Mohtasib 
appointed under Section 134 of the NWFP Local Government Ordinance, 
2001 reveals that the duties assigned to District Mohtasib appointed under 
Section 17 of Hisba Bill, relating to redress the grievances of the citizens 
against mal-administration by the holders of the public offices, are 
identical. Therefore, Provincial Government by creating Offices of “ Zilla 
Mohtasib” under the Hisba Bill is not authorized to delegislate a provision 
of law having constitutional protection.     
Reference No.2/2005 
23
16. 
A cursory perusal of the laws on the establishment of the federal and 
provincial offices of the Ombudsman, makes it clear that under Section 
12(1) of the Hisba Bill enormous powers have been given to “Mohtasib” to 
check the cases of mal-administration and implementation of its orders. 
Regarding disobeying the order of “Mohtasib” in terms of Section 10(b),(c) 
& (d) for non-performance of personal religious obligations by a citizen, 
the “Mohtasib” is competent to punish him for contempt. He can also lodge 
a complaint before a Magistrate, if there is ‘Khilaf-warzi’ of his orders, 
issued by him under Section 23(1), (2), (3), (5), (6), (7), (12), (14) and (27) 
of the Hisba Bill, which can entail imprisonment up to a period of six 
months and fine up to Rs.2000/-. Thus, the “Mohtasib” enjoys dual powers 
i.e. as an authority, exercising powers of a judicial officer, competent to 
punish a person for noncompliance of his orders and at the same time, as 
an investigator and prosecutor; authorized to submit complaint against a 
citizen, who in his arbitrary wisdom, failed to oblige him by accepting his 
orders, refraining him from or ordering him to perform certain actions, 
which in Mohtasib’s view are in accordance with Islamic thoughts, 
etiquettes and faith as believed by him.  
17. 
Plurality of powers at the command of “Mohtasib,” as noted above, 
distinguish him from the “Ombudsman” functioning under other laws, 
which give Ombudsman an authority only to make recommendatory 
directions, having no binding effect, as held in National Bank of Pakistan   
v.Wafaqi Mohtasib (NLR 1993 CLJ 171), Tariq Majeed Chaudhry v.  
Lahore Stock Exchange (PLD 1995 Lahore 572), Pakistan International 
Airlines Corporation    v.  Wafaqi Mohtasib (1998 SCMR 841), East West 
Insurance Company Ltd.   V.  Wafaqi Mohtasib (1999 MLD 3050), 
Punjab Agricultural Development and Supplies Corporation v.    
Reference No.2/2005 
24
Muhammad Rafiq Khan (2002 PLC (CS) 1133), Muslim Commercial 
Bank Ltd.      v.   Momin Khan (2002 SCMR 958)  and Nazir Ahmed Khan    
v.  Pakistan International Airlines Corporation (2004 PLC (CS) 119).  
18. 
Article 175 (3) of the Constitution mandates that judicial powers of  
binding nature are not to be conferred upon  the Authority exercising 
Executive powers of an investigator, prosecutor, etc. Section 10 of Hisba 
Bill, defines powers and duties of “Mohtasib” AND Section 12 prescribes 
the mode of  implementation of orders of “Mohtasib.” Section 14 gives him 
powers of contempt, as are vested under Contempt of Court Act, 1976, etc.  
19. 
It is significant to note that Section 25 had placed a restriction on 
the rights of hearing. Analysis of this Section suggests that the powers of 
judicial review against the orders of “Mohtasib” have been excluded 
against all cannon of justice with an object to enforce broad, uncontrolled, 
open and oppressive authority of “Mohtasib,” knowing well that the Courts 
functioning under Civil Procedure Code and Constitution had always 
exercised statutory and inherent jurisdiction to control sweeping powers of 
an Authority, particularly in penal acts, when considering them vague, 
arbitrary, unreasonable, etc.  
20. 
Mr.Makhdoom Ali Khan, learned Attorney General contended that 
the judicial powers are to be exercised by Courts and not by Executives like 
“Mohtasib” under Hisba Bill. Such exercise of powers deny the right of 
access to justice to a citizen. [See Mehram Ali    v.   Federation of Pakistan (PLD 
1998 SC 1445), Liaquat Hussain     v.   Federation of Pakistan (PLD 1999 SC 504), 
Khan Asfandyar Wali     v.   Federation of Pakistan (PLD 2001 SC 607)].   
 
21. 
Learned counsel for Government of NWFP stressed that no judicial 
powers have been conferred upon the “Mohtasib” by Hisba Bill. The 
Reference No.2/2005 
25
powers exercisable by “Mohtasib” are corresponding to powers of 
“Wafaqi Mohtasib” and by the Mohtasibs of Provinces.  
22. 
Section 12 of the Hisba Bill prescribes implementation powers of 
“Mohtasib,” and Article 11 of the President’s Order No. 1 of 1983 
Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 
[herein after referred to as “Wafaqi Mohtasib Order”] deals with the same 
subject. Same is the position in Provincial laws dealing with the Offices of 
Ombudsman. The Federal and Provincial “Mohtasibs” after having 
considered a matter communicate their findings; (a) to consider the matter 
further; (b) to modify or cancel the decision, process, recommendations, 
act or omission; (c) to explain more fully the act or decision in question; 
(d) to take disciplinary action against any public servant of any agency, 
under the relevant laws applicable to him; (e) to dispose of the matter or 
case within a specified time; (f) to take action on its findings and 
recommendations to improve the working and efficiency of the agency 
within a specified time; (g) to take any other step specified by the 
“Mohtasib.” Whereas, under Section 12 of the Hisba Bill, “Mohtasib” has 
been given power to issue  Hukam-nama [order] to the competent officer of 
the department concerned for implementation and at the same time he is 
authorized to take such steps as he considers necessary. On receipt of  
“Hukam-nama” [order], concerned agency is bound to implement the 
same, failing which the action against concerned agency or delinquent 
officer under the law relating to removal from service or any other action, 
including criminal and civil proceedings, shall be directed by him.  
Difference between recommendation i.e. advice, proposal, suggestion, 
counsel, etc. and “Hukam-nama” [order] i.e. command, direction, 
instruction, etc. is well understood as per their plain dictionary meanings.  
Reference No.2/2005 
26
Interpretation of both these expression by following golden rules of 
construction of statutes, to adhere to the ordinary meanings of the words 
used, and to the grammatical construction, unless that is at variance with 
the intention of the legislature, to be collected from the statute itself, or 
leads to any manifest absurdity or repugnancy, in which case the language 
may be varied or modified, so as to avoid such inconvenience, but no 
further.”  
23. 
Learned Attorney General explained that under the Wafaqi 
Mohtasib Order, an agency has either to comply with recommendations on 
receipt of communication from “Mohtasib” or to inform him the reasons 
for not complying with the recommendations. But under Hisba Bill, an 
agency is bound to obey the “Hukam-nama” [order] of Mohtasib, 
otherwise it is to be implemented in the manner as liked by him as he has 
an authority under Section 12(1) to take up such steps as he considers 
expedient. He apprehended that “Mohtasib” would not be precluded to 
exercise such powers, under the garb of this authority, arbitrarily and  
callously for want of any check on him. He argued that it can also give rise 
to corruption and corrupt practices as historically and in the recent past, 
the office of Hisba had earned a bad name. In this behalf he invited 
attention to the references given herein before.  
24. 
Learned Attorney General also contended that the “Hukam-nama” 
[order] of “Mohtasib” under Section 12(2) of the Hisba Bill is not confined 
to the extent of an agency in respect of official mal-administration but also 
is applicable to personal/individual religious rights of the citizens qua 
powers of “Mohtasib” under Section 10(b), (c) and (d). Whereas, in the 
Federal Mohtasib law and the laws prevailing on the subject in other 
Provinces, no such “Hukam-nama” [order] of binding nature can be 
Reference No.2/2005 
27
issued by the “Mohtasib.” In case of non-compliance of “Hukam-nama” 
[order] of “Mohtasib,” within stipulated time, the Officer of agency will 
expose himself for one or more actions, on recommendations of 
“Mohtasib” under the law relating to removal from service including 
facing criminal proceedings, if “Mohtasib” is satisfied that he has 
committed a cognizable offence and even a civil suit can also be registered 
against him under Section 12(1)(c) of the Hisba Bill. Surprisingly, against 
such a binding order of the Mohtasib, a right of appeal has been given to 
an aggrieved person before the Executive Head of the Province i.e. Chief 
Minister under Section 12(4) of the Hisba Bill. The official of the agency as 
an individual, to whom binding “Hukam-nama” [order] has been given, 
relating to his personal rights, could also face contempt proceedings, under 
Section 14 of the Hisba Bill. It may be visualized that a binding “Hukam-
nama” [order] issued by the Mohtasib, under Section 12(1) has to be 
obeyed even if it is an unlawful “Hukam-nama” [order], though against 
illegal orders/unlawful orders, this Court in the case of Zahid Akhtar v.   
Government of Punjab (PLD 1995 SC 530) and  Ramesh M. Udeshi v.   
The State  (2005 SCMR 648), has forbidden the Government Officials to 
implement such orders. Likewise, an individual having different religious 
standards/values of understanding  the Sharia, as per his sect, is not bound 
to obey “Hukam-nama” [order] of “Mohtasib” but due to unbridled/ 
unfettered/arbitrary powers of “Mohtasib” he would have no option but to 
obey it. Thus, such conduct of “Mohtasib” is bound to create ‘Fasad’ 
among different sects of Islam, particularly between Sunnis  and Ahl-e-
Tashees. For exercising powers under Section 10( b) ( c) & (d) and for 
implementation of “Hukam-nama” [order] under Section 12(1) of Hisba 
Bill, the citizens and “Mohtasib” both are required a lot of preparation, 
Reference No.2/2005 
28
otherwise, it would be enough for fueling enormous sectarianism not only 
in NWFP but also in other parts of the country, including a serious threat 
to law and order and breaking down of constitutional apparatuses, 
prevailing in the country as well. The prominent jurists had always 
emphasized for adherence to rule of law acceptable to all the citizens and 
no sooner a distinction is created between man to man, in exercise of wide 
ranged unbalanced and un-Constitutional powers, by a particular 
individual like “Mohtasib,” it will give rise to intolerance in the society as 
a whole and cause to increase against each other which may endanger 
peace and tranquility. 
18. 
We are in quite agreement with the contention of learned Attorney 
General that private life, personal thoughts and the individual beliefs of 
citizens cannot be allowed to be interfered with. The above discussion 
persuades us to hold that powers of passing order of judicial nature have 
been conferred upon “Mohtasib,” being an Executive Officer, basically 
appointed under the Hisba Bill, to inquire/investigate into the cases of mal-
administration of Government Agencies as well as in respect of the 
religious/personal affairs of the individuals and at the same time blocking 
the powers of judicial review by the Civil/Criminal Courts, which are under 
the protection of the Constitutional law. A right of appeal against a binding 
“Hukam-nama” [order] of “Mohtasib” has been made available to an 
Officer of agency before the Chief Minister, who being a political Head and 
Chief Executive of the Province, ordinarily is not expected to give 
independent decision. Strangely, against a binding “Hukam-nama” [order] 
of “Mohtasib” issued by him under Section 10 ( b ) ( c ) and ( d ) a citizen 
has no remedy and if he fails to obey such “Hukam-nama” [order] of 
“Mohtasib,” he is liable to face contempt proceedings. The Hisba Bill to 
Reference No.2/2005 
29
facilitate the citizens could have defined exhaustively number of terms used 
in Section 10 i.e. Islamic values etiquettes and  Sharia, exhaustively, which 
should have been acceptable to the Muslims of all sects, including Sunnis, 
Ahl-e-Tashees, Brailvees, etc. but by using ambiguous terms of these 
expressions, citizens belonging to different sects have been led into 
absurdity. Admittedly, the Wafaqi Mohtasib has no authority to issue orders 
of binding nature, while implementing its findings. Under Article 11(2) of 
Presidential Order 1983, the agency can inform “Mohtasib” about the 
action taken on his recommendations or the reasons for not complying with 
the same and in any one of these situations, no action can be contemplated 
against the officer of the agency.   
25. 
It is important to note that the Federal Mohtasib can only take 
action of defiance against an agency, if his recommendations are not 
complied with or no reason has been given to his satisfaction for non- 
compliance; otherwise he has no power to punish the officer/official of the 
agency.  Moreover, against the recommendations of the Mohtasib, the 
aggrieved person including the complainant as well as the agency is 
competent to file a representation before the President, and not before the 
Prime Minister qua the Hisba Bill, whereas under Section 12 (4) of Hisba 
Bill, representation is maintainable before the Chief Minister. It is not 
understandable as to why powers of implementation of orders of Mohtasib, 
revolve around the Executive functionaries, instead of conferring such 
powers upon the Head of the Province i.e. the Governor.  In the case of 
Shafaatullah Qureshi  v. Federation of Pakistan (PLD 2001 SC 142) it is 
held  that  the  Office of Mohtasib  has  been  created  to  redress the 
grievances of the citizens; findings of the “Mohtasib” are of 
recommendatory nature and not a judgment or decision; performance of 
Reference No.2/2005 
30
quasi judicial functions by itself does not confer an authority onto a Court; 
whether an action is quasi judicial or purely executive, it depends upon the 
interpretation of the rules and the law, which the authority exercises. 
Similarly, in Mehram Ali’s case (ibid), it is held that “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.” Relevant portion therefrom, is reproduced herein below:-- 
(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 vests 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 with 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 
Reference No.2/2005 
31
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. 
 
26. 
 Above principles of law have been reiterated in Liaqat Hussain and 
Khan Asfand Yar Wali (ibid). Relevant para from the latter judgment is 
reproduced herein below :- 
“192. Section 9(c) read with Section 24(d) of the NAB 
Ordinance vests the power to release any person, 
accused of an offence under the NAB Ordinance, in the 
Chairman NAB, and that too on the basis of any 
conditions as he may think fit are unwarranted. The 
powers to set conditions for the release of an accused 
from custody or detention is a judicial power which 
ought not to be exercised except by a Court which is 
established under Article 175 of the Constitution and is 
subject to the supervisory jurisdiction of the High Court 
in terms of Articles 202 and 203.” 
27. 
Mr. Khalid Anwar, learned Sr. ASC for Government of NWFP 
contended that under Section 14 of the Hisba Bill same powers of contempt 
of Court are available to “Mohtasib” which are being exercised by the 
Federal Mohtasib under Section 16 of Wafaqi Mohtasib Order, therefore, 
the authority to punish for contempt of the “Mohtasib” cannot be 
questioned. 
28. 
In this behalf it may be noted that according to Section 14 of the 
Hisba Bill, “Mohtasib” enjoys powers to punish for contempt, a person 
who acts in a manner which under any law for the time being in force falls 
within the definition of the contempt; provided that any comments, made in 
good faith and in the public interest, on any act or on report of the 
“Mohtasib” or his employee or representative, shall not be treated as 
Reference No.2/2005 
32
contempt. Whereas under Article 16(d) of the Wafaqi Mohtasib Order, the 
“Mohtasib” has the same powers to punish a person for contempt as the 
Supreme Court enjoys for its contempt. Under the Contempt of Court Act, 
1976, inter alia, a person is said to be guilty of contempt of Court, who 
disobeys or disregards any order, direction or process of a Court, which he 
is legally bound to obey. Admittedly, recommendation made by the Wafaqi 
Mohtasib does not enjoy the status of an order or direction, as discussed 
herein-above, whereas under Section 12 (1) of the Hisba Bill, the 
“Mohtasib” seeks the implementation of a “Hukam-nama” [order] of a 
binding nature, therefore, its disobedience would call for action of 
contempt of Court. Likewise, under Chapter X of PPC, non-compliance 
with the recommendations, has not been made punishable as contempt of 
Court, but disobedience to the order duly promulgated by public servant 
under Section 188 PPC is punishable. In Section 12 of the Hisba Bill, 
“Mohtasib” is authorized to issue directives to the competent officer of the 
department concerned, to implement his “Hukam-nama” [order] and he 
may take up at the same time, such steps, as he considers appropriate for 
implementation of “Hukam-nama” [order] as it is of binding nature by its 
implication,  therefore, in exercise of these powers he can also direct to 
proceed against such persons (both officers of the agency and private 
citizens) under Section 188 PPC, whereas the Wafaqi Mohtasib in view of 
the recommendations made by him cannot issue such type of directions. 
Therefore, on account of the distinction between “Hukam-nama” [order] 
of a binding nature and recommendations of directory nature, issued by 
the “Mohtasib” under the Hisba Bill and Federal Ombudsman, under 
Wafaqi Mohtasib Order, respectively, the action initiated for contempt of 
Court by the former would be more oppressive. Thus for these reasons, the 
Reference No.2/2005 
33
power of contempt of Court conferred upon the “Mohtasib” under the 
Hisba Bill cannot be equated with that of the Federal Ombudsman. 
29. 
There is yet another interesting aspect of the Hisba Bill namely as 
per Section 24, the “Mohtasib” with all his staff including Hisba Force 
shall be deemed to be a Public Servant within the meaning of Section 21 of 
the Pakistan Penal Code, therefore, in such capacity, after having passed a 
binding order in exercise of the powers, conferred upon him, under Section 
10 with the aid and assistance of Hisba Police, which is provided to him 
according to Section 26 of the Act to conduct his affairs, he himself would 
be the strongest functionary to ensure the implementation of his orders, 
otherwise, any one either being the officer of the agency or an individual 
would face the extreme consequences, as discussed herein before.  
30. 
By making available Hisba Police to the Mohtasib, another 
distinction has been created in between the Hisba Bill and the Wafaqi 
Mohtasib Order. The object of strengthening the arms of the “Mohtasib,” 
under the Hisba Bill, is nothing but to implement his “Hukam-nama” 
[order] per force, if need be.  
31. 
Learned counsel for the Government of NWFP contended that under 
Section 2 (h) of the Hisba Bill, definition of Hisba Police has been 
provided, according to which a police force will be deputed to work for the 
purposes of this Act. According to him the “Mohtasib” would be exercising 
the supervisory role and that “Mohtasib” will not go on roaming missions, 
catching hold of an axe, prosecuting and sending people to jail. He stated 
that according to his instructions, the Provincial Assembly believes not to 
arm any one with a general warrant to go and arrest to whom he pleased. It 
was pointed out to learned counsel that such assurances do not seem to be 
in consonance with the language as used in the Hisba Bill itself. Besides, 
Reference No.2/2005 
34
the questions posed by the President in this reference cannot be answered 
in view of instructions and assurances, whatsoever that may have been 
received by him from the NWFP Government.  
32. 
On the other hand, learned Attorney General contended that as per 
Section 10 in general and Section 23 in particular of Hisba Bill, there is 
great assortment of activity and due to which the “Mohtasib” is authorized 
to pickup any one and then apply the provisions or put the investigator to 
work to pin such provision.  According to him “Mohtasib” can virtually 
pickup a person to whom he may not like or select a group of unpopular 
persons and then look for their offence and that if such powers are allowed 
to continue to be exercised by an Executive Authority, there would be a 
great apprehension and danger of abuse of his powers.  
33. 
It may be recalled that before the separation of Judiciary from the  
Executive, such powers were used by the Police as well as Executive 
Magistrates and in this conduct this Court had observed in the case of 
Government of Balochistan      v.     Azizullah Memon (PLD 1993 SC 341) 
that “one of the modes for blocking the road of free access to justice is to 
appoint or handover the adjudication of rights and trial of offence in the 
hands of the Executive Officers.” Ultimately, it held that “such provision 
incorporated in such like legislation shall be declared to be void being in 
conflict with Articles 9, 25, 175 and 203 of the Constitution.” Thus, 
following the dictum laid down therein, we are of the opinion that the 
“Mohtasib” under Hisba Bill has been authorized to issue binding 
“Hukam-nama” [order] to implement the result of his investigation to the 
officer of the agency, relating to the Government affairs as well as to 
individuals in respect of their personal religious rights and due to non-
compliance of the same, they would have to face penal consequences, 
Reference No.2/2005 
35
details of which have been mentioned herein before. Thus, an Executive 
Authority, by issuing judicial orders of binding nature violates the 
fundamental right of the citizens enshrined in Articles 9, 25 read with 
Article 175 and 203 of the Constitution. The “Mohtasib” had not been 
appointed in accordance with the provision of Article 175 (1) and (2) of the 
Constitution, therefore, any order of penal nature passed by him against an 
agency or individual, would be in violation of the right of access to justice 
and would also tantamount to setting up a parallel judicial system, 
recognition whereof is not possible within the present constitutional 
judicial system prevailing in the country.  
34. 
Learned Attorney General contended that the duty of Amar-bil-
Maroof and Nahi-unal-Munkir, however, must be performed by the State in 
accordance with the Constitutional norms and the fundamental rights of the 
citizens, thus there is no room for the creation of an office of Hisba with 
penal powers of “Mohtasib” to implement his “Hukam-nama” [order]. 
The “Mohtasib” cannot be vested with the authority to decide in his 
discretion, whether an act is inconsistent with Islamic morals and etiquettes 
or not. To substantiate his arguments he referred to :--- 
1. 
“A brief on the Hisba Bill”  by Javed Ahmed Ghamedi.  
2. 
“Commanding Right and forbidding wrong" by Michael Cook. 
(relevant at pages 186, 187, 474, 490, 491, 509, 510, 522-524)  
 
3. 
“Islami Riyasat Main Mohtasib Ka Kirdar” by Dr. M.S. Naz. 
(relevant at pages 212, 279).  
4. 
“Three Year Report” of Council of Islamic Ideology (1974-1977) 
 
(relevant pages 220, 222, 224, 225, 230, 231, 233, 236, 238, 242). 
35. 
On the other hand learned counsel for the NWFP Government 
contended that the Hisba Bill had focused mainly on mal-administration in 
government department/agency, and incidentally in the field of personal 
conduct on the basis of what is contained in the preamble of the 
Reference No.2/2005 
36
Constitution of Pakistan. He further stated that Islam is a religion, both for 
the individual and the society as a whole, being a complete “Deen” and a 
complete code of life. Therefore, every law promulgated for an individual 
or for Government Agencies  must be in accordance with Islam. He read 
the definition of “Amar-bil-Maroof-wa-Nahi-unal-Munkir,” under Section 
2(b) and 2 (k) of the Hisba Bill and stated that as per this definition no 
powers are being conferred upon the “Mohtasib” except that as per the 
Quranic obligation, he has to fulfil the obligation of enjoining telling 
people to do the good and forbid wrong, and to achieve the object, Hisba 
Police has been deputed with the “Mohtasib” under the law to go and 
enquire, therefore, the role of “Mohtasib” is “supervisory enquiry role to 
ask question.” He read out different parts of the Hisba Bill to substantiate 
that the Provincial Assembly has not promulgated it to violate the 
fundamental rights of the individuals and stated that in view of the simple 
provisions of the Bill this Court is not bound to answer the reference in 
affirmative.  
36. 
Islamic jurists are unanimous on the point that except “Sallat” and 
“Zakat” no other religious obligation stipulated by Islam can be enforced 
by the State. There is also unanimity that the “Zakat” obligation was 
seriously enforced through State coercion by Hazrat Abu Bakar and for 
“Sallat” the only way is through ‘Taleem, Tableegh, Talkeen and 
Targheeb.’ Article 2 of the Constitution provides that Islam shall be the 
State religion of Pakistan. Article 227 of the Constitution stipulates that all 
existing laws shall be brought in conformity with the Injunctions of Islam as 
laid down in Holly Quran and Sunnah and no law shall be enacted, which 
is repugnant to such injunctions. Explanation attached thereto, being very 
important lays down that in the application of this clause to the personal 
Reference No.2/2005 
37
law of any Muslim sect, the expression ‘Quran and Sunnah’ shall mean, the 
‘Quran and Sunnah’ as interpreted by that sect. Its sub-Article (2) says that 
the effect shall be given to the provisions of clause (1) only in the manner 
provided in that part and according to sub-Article (3) nothing in that part 
shall affect the personal laws of non-Muslim citizens or their status as 
citizens. 
37. 
The explanation to Article 227 of the Constitution defining the 
expression ‘Quran and Sunnah’ was added by Constitution (Third 
Amendment) Order, 1980 (P.O. 14 of 1980). Addition of this explanation 
was considered necessary as there are more than one sect in Islam like 
Sunnis and Ahl-e-Tashee, etc. It is important to note that there had been 
remarkable differences between various schools of thought even on 
common interpretation, like what is the definition of Muslim. Learned 
Attorney General had referred to report of the Court of Enquiry, 
constituted under Punjab Act (II) 1954, to inquire into the Punjab 
Disturbances of 1953 and stated that Ulemas’ had no unanimity before the 
Court of inquiry on the definition of ‘Muslim,’ because, everyone being a 
Muslim has his own interpretation of Quran and Sunnah. Therefore, 
Mohtasib, under the Hisba Bill cannot be empowered to determine in his 
discretion whether any act is consistent with Islamic moral values and 
etiquettes or not. A perusal of Section 10 clauses (Bey )(Jeem) and (Dal), 
shows that the “Mohtasib” has been authorized to protect/watch the 
Islamic values and etiquettes at the provincial level; watch the media 
established by Government or working under the administrative control of 
the Government to ensure that its publications are useful to the purpose of 
Islamic values; forbid persons, agencies and authorities working under the 
administrative control of Government to act against Sharia and to guide 
Reference No.2/2005 
38
them to good governance. Similarly, his powers and duties have been 
extended by conferring upon him special powers, under Section 23 of the 
Hisba Bill, which includes (1) to monitor adherence of moral values of 
Islam at public places, (2) to discourage ‘Tabdhir’ or extravagance, 
particularly, at the time of marriages and other family functions; (3) to 
follow code of Islam in giving dowry; (5) to monitor adherence of Islamic 
values and its respect and regard at the times of ‘Iftar’ and ‘Traveeh’;  
(6) to discourage entertainment shows and business transactions at the 
times of ‘Eidain’ and ‘Jumma'hs’ prayers around mosque, where such 
prayers are being held; (7) to remove causes of dereliction in performance 
and proper arrangement of ‘Eidain’ and ‘Jumm’ah’ prayers; (12) to 
observe decorum of Islam at the time of ‘Azan’ and ‘Fard’ prayer; (14) to 
discourage un-Islamic and inhuman customs;  and (27) to perform any 
other function or functions, which the Provincial Mohtasib determines from 
time to time in consultation with the Advisory Council. Defiance (Khilaf-
warzi) of the order of the Mohtasib, in the performance of his duties under 
Section 23 of the Bill has been made a non-cognizable offence punishable 
with an imprisonment, for a term up to six months and a fine up to 
Rs.2000/- as per Section 28 of the Hisba Bill and cognizance will be taken 
on the complaint of “Mohtasib” or his authorized representative. No Court 
shall take cognizance of an offence under this Section except on a 
complaint in writing to “Mohtasib” or its authorized representative and as 
per sub-Section (2), the offence under Section (1) shall be tried by the 
Court in accordance with Code of Criminal Procedure, 1898 and the order 
shall be appealable. It is quite interesting to note that in respect of most of 
the personal rights of the individual Muslims, an offence has been created, 
if he/they had done “Khilaf-warzi” of the order passed by him.  
Reference No.2/2005 
39
38. 
Learned Attorney General contended that the provisions of Sections 
10, 12, 23 and 28 of the Hisba Bill are vague in nature and particularly, 
being penal, are liable to be declared un-constitutional. He further stated 
that such penal provisions must explicitly define the conduct of a criminal 
and unless it clearly and categorically defines its boundaries, it would be 
treated as an arbitrary enactment, because the citizens against whom a 
penal action is proposed, has no notice that on account of what type of 
conduct he is being charged and has been held responsible for penal 
consequences. Reference is made to Mehram Ali (ibid), Jamat-i-Islami 
Pakistan  v. Federation of Pakistan  (PLD 2000 SC 111), Kartar Singh   v.   
State of Punjab ([1994] 3 SCC 569) Dick Gragory  v.  City of Chicago [22 
L. Ed. 2d 134], Margarete Papachristou     v.   City of Jacksonville [31 L. 
Ed. 2d 110]. 
39. 
 He further contended that the State can control the fundamental 
rights by imposing reasonable restriction, in order to survive the test of 
Constitutional scrutiny, as it has been held in the case of Saiyyid Abul A’la 
Maudoodi  v. Government of West Pakistan (PLD 1964 SC 673), 
Universal Tobacco Co. v. Pakistan Tobacco Board  (1998 CLC 1666), 
Arshad Mehmood    v.   Government of Punjab  (PLD 2005 SC 193), R.    
v.  Chaulk [1990] 3 SCR 1303 (Canada)], Article 26 and the Employment 
Equality Bill 1996 [1997] 2 IR 321], Article 26 and the Planning and 
Development Bill 1999 [2000 (2) IR 321], Treatise on Constitutional Law 
by Rotunda [3rd Edition Vol. IV  263-264], Coates  v.  Cincinnati [29 L.Ed. 
2d 214], Kunz   v.  New York [95 L. Ed. 280]. 
40. 
Mr. Khalid Anwar, learned counsel for Government of NWFP 
contended:- 
a) 
That the “Mohtasib” under the ‘Hisba Bill’ is 
being appointed keeping in view the concept of 
Reference No.2/2005 
40
accountability, 
therefore, 
office 
of 
the 
“Mohtasib” is indeed integral to Islam.  
He stated that the first “Mohtasib” was the Holy 
Prophet (PBUH) himself. He quoted that “the 
Holy Prophet (PBUH) checked the market and 
found that in a heap of corn, the wet corn had 
been placed under the dry corn; he said “he who 
deceives is not from me i.e. my class.”  
b) 
That this reference has been mainly filed, as per 
its contents, because in ‘Hisba Bill’ NWFP 
Assembly has not taken into consideration the 
recommendations of the CII. According to him a 
perusal of the report indicates that no 
recommendations were made in accordance with 
‘Sharia.’  
c) 
That the Hisba Bill is strictly as per the final 
report of CII, published in 1996 and this report 
has not been brought before the Court by the 
Federation intentionally.  
d) 
That the Hisba Bill is not unconstitutional, 
vague and is not a penal law. According to him, 
it does not suggest any criminal action and the 
powers have only been given to “Mohtasib” to 
educate the general public to spend their lives 
according to injunction of Islam and he has not 
been authorized to send a person into jail.  
However, he admitted that only those citizens, 
who commit defiance of the “Mohtasib” order 
will be liable to prosecution under Section 28 of 
the Hisba Bill. He stressed that simple 
disobedience would not make a citizen liable to 
be punished. 
e) 
That the framers of Hisba Bill have not acted 
unconstitutionally by leaving a number of key 
Reference No.2/2005 
41
concepts undefined, particularly as these terms 
are incapable of precise definition.  According 
to him some degree of vagueness if inevitable, 
particularly with respect to Islamic issues, as 
Islam is like a vast ocean; those standing on its 
shore cannot even guess its depth and due to this 
reason, 
the 
framers 
of 
the 
Constitution 
deliberately did not even define Muslim 
exhaustively.  
f) 
That in the modern countries, like United 
Kingdom, general laws are being framed for 
anti-social behaviour. He referred to Anti-Social 
Behviour Order Law.  
g) 
That the Hisba Bill is not an unreasonable 
restriction on fundamental rights. Legislature 
can make laws, which can place restriction upon 
personal matters. He quoted example of Muslim 
Family Laws Ordinance 1961, which controls 
the right of  second marriage of a Muslim. 
h) 
That the Hisba Bill is not discriminatory because 
“Mohtasib” will only decide issues according to 
the belief of that particular sect. He quoted an 
example that if “Mohtasib” goes and inquires 
from a particular individual as to why he is not 
saying his Zohar prayer; that person may then 
respond by saying that he belongs to Fiqa Jafria 
and he will say his “Zoharain” prayer.  
i) 
That the “Mohtasib” will not be exercising 
judicial powers as he will only seek to enforce 
laws already on the books. For example if an 
FIR is not being registered, a citizen can 
approach to the “Mohtasib” who will then direct 
the SHO to register the FIR. “Mohtasib” can 
Reference No.2/2005 
42
only ask Police to act expeditiously and to fulfil 
its duties; it cannot order them to arrest people.  
j) 
That the “Mohtasib” has no power with regard 
to private media organizations.  
41. 
First of all it may be noted that the recommendations of CII, dated 
6th September 2004, were compiled/prepared by one of the members, i.e. 
Justice (R) Haziq-ul-Khairi. This report was considered by the Council in 
its 154th meeting, held on 12th/13th August 2004, and finalized after 
thorough consideration, wherein CII strongly advised against the 
enactment of the proposed legislation. In the report, it was also notified 
that the draft Hisba Bill has violated a number of constitutional provisions 
and was capable of being exploited for political ends. Reference in 
particular is required to be made to the following para of the above 
report:---- 
 
The reference of above para is sufficient to counter the arguments of 
learned counsel about non-expressing of opinion by the CII in accordance 
with Article 230 of the Constitution.  
42. 
It is surprising to note that learned counsel for Government of  
NWFP read some portion from previous report including the final report of 
1996 of CII, wherein general recommendations on proposed draft of 
legislation were made and finally in para- 30, the following five measures 
were suggested.  
Reference No.2/2005 
43
i) 
The institution of Hisba will be established on the pattern 
of Ombudsman by an Act of Parliament or by the order of 
the President.  
ii) 
The laws relating to the matters and functions under the 
jurisdiction of the Hisba will be properly amended to 
facilitate the working of this Institution.  
 
iii) 
For the education and guidance of the officials, 
appointed for the purpose of Hisba, a comprehensive 
guide book must be compiled and published, preferably 
by the Islamic Research Institution. 
 
iv) 
 For training courses for the officials to be appointed for 
this purpose, must be planned and conducted preferably 
by the Sharia Academy International Islamic University.  
 
v) 
Courses on the subject of Hasab must be included in 
Islamic Studies, Law Colleges, Political Science and 
Civics syllabi and curricula.  
 
43.  
It is important to note that in 2001, the Ministry of Religious Affairs 
referred to CII a proposed “Draft Law for the Performance of ‘Sallat’, 
Amar-bil-Maroof-wa-Nahi-unal-Munkir, 
(Establishment 
of 
Hisba), 
Ordinance 2000. This draft was examined by CII in its Annual Report 
2000-2001 and submitted its opinion as follows:--  
i) 
The Council recommended that the difference of 
doctrine among the various Muslim Schools of thoughts 
must be recognized and the views of one school must not 
be imposed on others.  
ii) 
Hisba Officials must work on voluntary basis.  
 
iii) 
Before appointment the Hisba Officials must be properly 
trained. Necessary training courses must be initiated for 
this purpose.  
iv) 
The number of Ulemas’ in the Hisba Board must be 
increased in order to ensure representations of the 
various schools of thoughts.  
v) 
Balance of power and authority among the various 
officials must be clearly maintained.  
vi) 
The law should be clear about the offences and 
punishments. 
vii) 
The Ordinance is not clear about Hisba Officials; in 
some clauses they are defined as volunteers, not 
receiving any salaries and in others they are designated 
as public officers.  
 
The above opinion clearly suggests that emphases of the CII was to make 
the law non-sectarian, free from ambiguities and conflict with other laws. 
Similarly, in the report dated 6th September 2004, the CII again stressed, 
Reference No.2/2005 
44
impliedly and expressly on the clarity, non-sectarian and non-conflictual 
nature of law on Hisba. The NWFP Government instead of showing haste 
might have studied in depth, all the reports of CII before moving the Bill in 
Assembly. However, the arguments raised by learned counsel for 
Government of NWFP that CII in its report dated 6th September 2004 had 
not made recommendations in terms of Article 230 of the Constitution, 
seems to be unfounded in view of the above discussion. 
44.  
A perusal of clauses of Section 23, reproduced herein above, of the 
Hisba Bill, clearly suggest that the Bill is a penal statute. Language 
employed therein indicates that if citizens disobey the order of the 
Mohtasib, particularly passed with reference to the clauses of Section 23, 
noted herein-above, he/they will make him/themselves liable for 
prosecution.  
45. 
It is important to note that in English translation, word ‘defiance’ 
has been used in Section 28 of Hisba Bill, whereas in its Urdu text, the 
word ‘Khilaf-warzi” i.e. disobedience has been used. As per “Feroze Sons 
Urdu-English Dictionary” (page 333) “Khilaf-warzi karna” means ‘to 
oppose,’ ‘to disobey’ and ‘to misbehave.’ Thus, reading the provisions of 
Section 10 clauses (b),(c) and (d) and Section 23 clauses (1), (2), (3), (5), 
(6), (7), (12), (14), particularly (27), disobedience (Khilaf-warzi) of the 
order of “Mohtasib” by a citizen entails penal consequences. Admittedly, in 
Section 10 (b), (c) and (d), expressions ‘Islamic values and etiquettes’, and 
‘Sharia’ have been used, but without any definition. Similarly, ‘Khilaf-
warzi’ of the order of Mohtasib, regarding clauses incorporated in Section 
23, no definition has been provided. Likewise, any other issue, which would 
fall within the realm of ‘Amar-bil-Maroof-wa-Nahi-unal-Munkir’ would be 
Reference No.2/2005 
45
dealt with under their open ended definitions as per Section 2(b) and 2(k) 
of Hisba Bill.  
46. 
Essentially, discretionary powers have been conferred upon 
“Mohtasib” to create a new offence with the consultation of Provincial 
Advisory Council or whatever the case may be, in exercise of powers under 
Section 23(27) of the Hisba Bill. The “Mohtasib” being an Executive 
Officer under Hisba Bill has been authorized to lodge a report before the 
Court, either himself or through his authorized representative against the 
citizen, who is guilty of “Khilaf-warzi” (disobedience) of his orders, passed 
under any of the clauses of Section 23 of the Hisba Bill, referred to herein 
before. In respect of some of the items noted in Section 23 of the Hisba Bill, 
substantive laws already exist which have been framed either by the 
Federation of Pakistan or by Provincial Governments, detail of which is 
mentioned herein below:-- 
 
Laws already in field: 
 
Grounds of challenge 
Section 
23. 
Special 
Powers of Mohtasib.— 
Without prejudice to the 
powers 
conferred 
by 
section 10, and along 
with the duties of amar 
bil maroof and nahi unal 
munkir 
the 
Mohtasib 
shall have the following 
powers: 
 
- 
- 
(i) To monitor adherence 
of moral values of Islam  
at public places; 
 
Pakistan Penal Code, 
1860 (Sections 295-B, 
295-C, 296, 298, 298-A  
& 298-B). 
 
Prevention of Gambling 
Act, 1977. 
 
NWFP Prevention of 
Gambling Ordinance, 
1978. 
 
West Pakistan 
Prohibition of Opium 
Smoking Ordinance, 
1960. 
 
• 
Freedom of Assembly 
• 
Vague  
• 
Overbroad 
• 
No definite legislative 
guidelines 
 
 
 
Reference No.2/2005 
46
Ehteram-e-Ramazan 
Ordinance, 1981. 
 
(ii) 
To 
discourage 
exhibition 
of 
extravagance, 
particularly at the time of 
marriages 
and 
other 
family functions; 
 
NWFP (Prohibition of 
Firing and use of 
Explosive Substance at 
Marriages and other 
Ceremonies) Act, 1988. 
 
Marriage Functions 
(Prohibition of 
Ostentatious Display 
and Wasteful Expenses) 
Ordinance 2000. 
 
• 
Privacy  
• 
Freedom of Assembly 
• 
Vague  
 
(iii) To follow code of 
Islam in giving dowry; 
 
Dowry and Bridal Gifts 
(Restriction) Act, 1976. 
• 
Privacy  
• 
Vague  
• 
Over broad 
• 
Suffers from excessive 
delegation 
 
(v) To monitor adherence 
of Islamic values and its 
respect and regard at the 
times of iftar and taravih; 
 
Ehteram-e-Ramazan 
Ordinance, 1981. 
• 
Freedom of religion 
• 
Excessive  
 
(vi)To 
discourage 
entertainment shows and 
business transactions at 
the time of Eidain and 
Jummah prayers around 
mosques 
where 
such 
prayers are being held; 
 
- 
• 
Freedom of trade and 
business 
• 
Vague  
• 
Suffers from excessive 
delegation 
 
(vii) To remove causes of 
dereliction 
in 
performance and proper 
arrangement of Eidain 
and Jummah prayers; 
 
- 
• 
Freedom of religion 
• 
Lacks specificity 
• 
Lacks proportion  
 
(xii) To observe decorum 
of Islam at the time of 
Azan and Fard prayers; 
 
- 
• 
Freedom of Assembly  
• 
Freedom of religion 
• 
Vague  
• 
Excessive 
• 
Suffers from excessive 
delegation 
 
(xiv) To discourage un-
Islamic 
and 
inhuman 
customs; 
 
Code of Criminal 
Procedure, 1898 
(Sections 156A, 156B, 
401) 
 
  
Pakistan Penal Code 
1860 (Sections 310, 
310A)  
• 
Denial of due process  
• 
Violative of right to life, 
privacy, trade, business 
and profession, free 
speech, religion and 
equality. 
• 
Vague  
• 
Overbroad 
• 
Suffers from excessive 
delegation 
• 
Disproportionate  
 
(xxvii) To perform any 
other functions which the 
Provincial 
Mohtasib 
determines from time to 
- 
• 
Vague  
• 
Overbroad 
• 
Suffers from excessive 
delegation 
Reference No.2/2005 
47
time in consultation with 
the Advisory Council; 
 
 
 
47. 
The  perusal of above comparative table suggests that a citizen shall 
not be prosecuted because of non-violation of the codified penal offences 
but on account of ‘Khilaf-warzi’ of the order of “Mohtasib,” although with 
reference to their respective schools of thoughts, they are rightly following 
the Islamic values and Sharia. Besides, in respect of some of the provisions 
of the Constitution, they have their own personal laws, according to 
Muslim Sharia but the “Mohtasib” by curtailing their such rights, shall 
interfere in their personal liberties as well like under Section 23 clause (1), 
every Muslim according to his own school of thoughts, has his own moral 
values.  
48. 
Likewise, the “Mohtasib” would have direct interference/access in 
the family functions in the garb of discouraging ‘Tabdhir’ or extravagance 
at the time of marriages and other family functions. Such exercise of the 
powers would not only interfere in their personal life, freedom of assembly, 
liberty, dignity and  privacy, which is strictly prohibited in Islam. In this 
behalf reference may be made to the following passage from 
“Commanding Right and Forbidding Wrong in the Islamic Thought” by 
Michael Cook :--- 
“Less directly related to the spectrum of views set out 
above is concern, with what we would call respect for 
privacy. There is no single category that corresponds to 
this in Islamic terms; rather, there are three basic, 
mutually supporting principles at work here. The first is 
the prohibition of spying and prying; this is enshrined in 
Q49:12 The second is the duty not to divulge what would 
dishonour a Muslim; this is laid down in a Prophetic 
tradition. The third is the sanctity of a home, which rests 
on Koranic stipulations regarding the way one should 
enter the homes of others (Q2:189, Q24:27). All these 
Reference No.2/2005 
48
values are strongly reflected in the materials, we are 
concerned in this chapter.  
The prohibition of spying comes into play when 
Ibn Masud is asked about a man whose beard drips with 
wine, and responds that God has forbidden spying 
(Tajassus); we can take action, he says, only if the offence 
is out in the open (in yazhar lana shay), which is perhaps 
to say that we must actually see the man drinking.  
The duty not to divulge finds expression in an 
anecdote about the companion, Uqba ibn Amir al-Juhani 
(d 58/677f), who settled in Egypt and was Muawiya ‘s 
Governor there in 44-7/665-7. His Secretary, Dukhayn 
al-Hajri, explained to him that he had neighbours who 
drank wine and proposed to summon the police (shurat) 
to arrest them. Uqba told him not to do this, but rather to 
counsel and threaten them (verbally). He did so, but to no 
effect; so he again proposed to call in the Police. Uqba 
once more told him not to, and quoted a tradition he had 
heard from the Prophet (PBUH): who ever keeps hidden 
what would disgrace a believer (man stara mu’minan), it 
is as though he had restored a buried baby girl (Mawuda) 
to life from her tomb. The sanctity of the home is at the 
center of an exchange which takes place in Basra 
between a certain Abu l-Rabi al Sufi and Sufyan al-
Thawri regarding the activities of what I take to be the 
officially appointed censors (Mohtasiba): ABU L-RABI: 
Abu Abdallah! when I’ m with these censors, we go into 
the homes of these vile people, (Khabithin) clambering 
over the walls. SUFYAN: Don’t they have door? ABU L-
RABI: Well yes, but we rush in so they don’t escape. 
SUFYAN condemns this misconduct in no uncertain 
terms, and one of those present unkindly asks: Who let 
him in here. …………” 
 
49. 
For discouraging exhibition of extravagance at the time of marriage 
and other family functions, there are already two laws, as it has been 
pointed out in the above comparative chart. Out of them, one is Federal 
and the other is Provincial. This Court, in the case of Muhammad 
Siddique   v.   Government of Pakistan  (PLD 2005 SC 1), had maintained 
Marriage Functions (Prohibition of Ostentatious Displays and Wasteful 
Reference No.2/2005 
49
Expenses) Ordinance 2000 (II of 2000). As per this Ordinance, lawgivers 
had defined criminality for violation of the relevant provisions of the 
Ordinance and no one can be prosecuted unless the case of such individual 
falls within the defined boundaries of the law. It being explicit, elaborate 
and well defined, is in force throughout the country including the NWFP. 
Thus, it is held that any action taken in this behalf by the Mohtasib, would 
violate the provisions of Articles 9, 14 and 16 of the Constitution.  
50. 
For ‘Khilaf-warzi’ (disobedience) of the order of Mohtasib in not 
following the code of Islam in giving dowry under Section 23 (3) of the 
Hisba Bill, a citizen can be prosecuted, though, already there are defined 
provisions of law on this subject, details of which have been given in the 
above chart. The access of “Mohtasib” in such private affairs of an 
individual, without giving him notice or defining the boundaries of the 
violation of such penal provisions, would tantamount to denying liberty, 
dignity and privacy of fundamental rights enshrined under Articles 9 and 
14 of the Constitution by means of a vague, overbroad and excessive 
legislation  because a citizen  will not be liable for violating the laws 
already on the subject but for doing “Khilaf-warzi” (defiance) of 
Mohtasib’s order.  
51. 
A citizen can be held liable for “Khilaf-warzi” (defiance) of the 
orders of  “Mohtasib” purportedly passed by him during watching Islamic 
values in his own perspective at the time of ‘Iftar’ and ‘Traveeh’ within 
mischief of Section 23(5) of Hisba Bill. A perusal of above table would 
show that two laws are already available on the subject which lay down 
parameters  for taking action against a citizen, who violates the law out of 
any of them but the Mohtasib by passing any “Hukam-nana” [order] can 
hold any citizen for ‘Khilaf-warzi” i.e. disobedience of the same. Said 
Reference No.2/2005 
50
provision of law is not only vague but also violates right of freedom of 
religion of citizen under Article 20. It is a fact that  different sects of 
Muslims have got separate values and etiquettes for the “Ehteram-e-
Ramzan,” inasmuch as, timing of ‘Iftar’ among ‘Sunnis’ and ‘Ahl-e-
Tashee’ are different from each other. Similarly, there is no unanimity that 
what would be the number of ‘Rakats’ of ‘Traveehs’ and the interference by 
the “Mohtasib” would deny right guaranteed to the citizen under Article 20 
of the Constitution on the basis of excessive delegation of powers 
52. 
Under Section 23 (6) of the Hisba Bill, “Mohtasib” has been 
allowed to discourage entertainment shows and business transactions at 
the time of Eid prayer and Jumma prayer around Eidgah and Jamaa 
Mosques. In NWFP there are provisions of law on this subject incorporated 
in NWFP Local Government Ordinance 2001. The business of a person 
cannot be controlled/curtailed except by imposing reasonable restrictions 
in accordance with law, because it is a matter of common observance that 
on the occasion of prayers of Eidain and Jumma, people do small 
businesses like selling balloons, sweets etc, to earn their livelihood, 
particularly they carry on their business when such congregations are over 
and people start returning home and this practice is going on since 
centuries. Curtailment of rights of citizens in such manner would negate 
right of freedom of trade and business according to Article 18 of the 
Constitution,  by means of a vague legislation which suffers from excessive 
delegation.  
53. 
Under Section 23 (7) “Mohtasib” is authorized to remove causes of 
dereliction in performance and proper arrangements of Eidain and Jumma 
prayers. Offering of prayer or “Sallat,” again is a personal obligation on 
an individual being the Haqook Allah. Religiously the “Mohtasib” is not 
Reference No.2/2005 
51
authorized to check negligence/disregard of a person who has abandoned 
“Sallat” for one or the other reason. Allowing such interference by 
Mohtasib would deny the right of freedom to profess religion to an 
individual. The CII in 1978-79 had extensively considered this issue and 
opinioned that as far as “Fard Namaz” is concerned, if it is not offered, 
there should not be any penal consequences. The following eminent Islamic 
jurists have expressed their thoughts in the above report of CII:- 
Mr. Justice Muhammad Gul:-  There can be no gain 
saying the fact that (        ) [Sallat] is the foremost among 
the injunctions of Islam and yet the fact remains that the 
Holy Quran has not prescribed any punishment for its non-
observance although it is replete with the stern warnings 
about the chastisement both here and herein after, 
resulting from its non-observance. This is in sharp contrast 
with the punishment prescribed for crimes, directly 
affecting the orderly existence of society e.g. murder, 
causing 
hurt, 
adultery, 
fornication, 
perjury, 
etc. 
Historically too, it is not controverted that the Holy 
Prophet (PBUH) the first Four Caliphs of Islam, while they 
exhorted the faithfuls to be steadfast in the observance of   
(         ) [Sallat] its non-observance was not made a penal 
offence. Even after the Islamic State was firmly established 
and its boundaries had spread far and wide: any laxity or 
failure in observance of (       ) [Sallat] was not made a 
penal offence; although it was never doubted that it was 
quintessence of Islam.  
 
Mr.Justice (Rtd.) Kadir Nawaz Awan:- It is true that 
Namaz is one of the five pillars: It is also true that many 
Ayats in Qur’an Pak refer to its strict observance and 
finally that  we Muslims do not offer Namaz regularly. 
Quran Sharif does not lay down any punishment for its 
non-performance. Accordingly, no authority can lay down 
any kind of punishment for its non-performance as it 
amounts to sin and not an offence.  
   
Reference No.2/2005 
52
Mr. Justice Muhammad Afzal Cheema:- I have not 
been able to endorse the proposed legislation of the NWFP 
Government for converting into an offence an act of 
omission to offer five time prayers. The object, namely to 
ensure regular offering of prayers is no doubt very salutary 
but the proposed means of achievement are wholly 
unwarranted and impracticable. There can be hardly any 
doubt as to the physical and spiritual benefit of Namaz on 
which great emphasise has been laid in the Holy Qur’an, 
the offering of prayers is a personal affair between man 
and his creator. If offered conscientiously it changes the 
whole outlook of a man and is perhaps the best kind of 
worship aimed at self reform and purification which is a 
life long process.  
The best mode of inculcation of Namaz is by 
training, persuasion and practical demonstration which 
should start from childhood and should be followed up into 
schools and colleges.  
Dr. Moinuddin Baqai:- As other members of the Council 
of Islamic Ideology have opined,  Quran and Sunnah and 
Islamic jurisprudence do not specify non-observance of 
prayer as an offence, for which an Islamic State should 
specify worldly punishment. Punishment is provided for 
offence which violates Haquk-ul-Ibad (          ) or which 
results in the disruption of social order.  
 
Dr. Miss. Kaniz Yousuf:--  I am in agreement with the 
opinion expressed by Mr. Justice Muhammad Gul on the 
subject. Islam enjoins two types of obligations upon 
Muslims. Haquk Allah and Haquq al-Ibad. Offering of 
prayers is Haquk Allah and only Allah can punish in this 
case. No punishment is imposed on Muslim for laxity or 
failure in the observance of ‘Salat’ in terms of 
Fiqhah………………………………...    
 
Dr. Prof. Shamim Akhtar:--- Neither in the Qur’an nor 
in the hadith has any punishment been sanctioned against 
non-observance of prayers as in case of penal offences 
such as theft, murder, adultery, fornication, etc. To my 
Reference No.2/2005 
53
knowledge there is no evidence in the early history of Islam 
to the effect that the same has been penalized by law or fait 
either by the Prophet (PBUH) or by the pious Caliphs or 
their successors. This is not to say however, that no odium 
was attached to the one who failed to observe prayers…… 
……………………………………………………………………
………There developed in Islamic State the institution of 
Mohtasib, who was entrusted with the enforcement of 
“Maruf” (law) and prevention of “Munkir” (illegality). He 
took administrative action to facilitate public welfare and 
to curb the vices and social evils. The official duties of 
Mohtasib were varied, ranging from the checking of 
weights and measures, regulation of traffic on the ferries, 
demolition of dilapidated buildings, to prevention of 
cruelty to animals and of undue chastisement of students by 
teachers etc. He could also order the holding of 
congregational prayer and admonish those who habitually 
abstained from prayers but was not permitted to interfere 
with the beliefs and rituals of Muslims belonging to 
denomination other than his own. 
 
It may be pointed out that these matters fell outside 
the jurisdiction of judicial officers, Qazis and was the 
responsibility 
of 
Muhtasib, 
who 
treated 
them 
as 
administrative problems. As for the purposed legislation, 
while it is laudable to make sustained and practical efforts 
to induce the Muslims to observe prayers one fails to 
understand why would non-observance be declared a penal 
offence when the Quran and Sunnah and precedents of 
pious Caliphate have not done so.      
………….In my opinion, as by force making people to pray 
would not serve such of its purpose, it is not advisable to 
make this a cognizable offence and to prescribe any 
punishment by legislation for this purpose. All that we can 
do is to adopt measures of persuasion and exhortation for 
those who were not regular in their prayers. We may 
exercise moral pressure, arrange public lectures and 
publish light literature to preach and propagate the 
significance and role of prayer and its importance in the 
Reference No.2/2005 
54
life of an individual and in Muslim Society. We may utilize 
the mass media for this purpose.  
 
Maulana Ehtesham-ul-Haq Thanvi:--- 
 
 
54. 
In view of above consensus, the arguments of learned counsel for 
Government of NWFP, become redundant that Hisba Bill is in accordance 
with Islam. If the proposed legislation is accepted and is made into law, 
then a citizen who is held responsible for causing dereliction shall be liable 
to punishment for six months on the “Hukam-nama” [order] of 
“Mohtasib” by a Magistrate under Section 28 of the Hisba Bill. Besides, 
there is no provision of the Sharia, which mandates for the imposition of 
penalties for vague offences. However, if any provision of Sharia has 
defined relevant offence, like Hadood laws, penalties can be imposed. 
Reference No.2/2005 
55
55. 
The scheme of various sub-Sections of Section 23 indicates that the 
“Mohtasib” is empowered to straightaway lodge complaints either himself 
or through his representative to the Magistrate for ‘Khilaf-warzi’ of his 
order, without providing opportunity of hearing, against a citizen, despite 
that this Court has held in a number of cases that “the principles of the 
natural justice are in accordance with Islam and cannot be avoided.” [see 
Pakistan Vs.  Public at Large  (PLD 1987 SC 304) The Province of Punjab  v. National 
Industrial  Cooperative Credit Corporation (2000 SCMR 567)].  
56. 
Learned counsel for NWFP contended that legislature can make 
laws which intrude upon personal matters of citizens as under Muslim 
Family Laws Ordinance, 1961, right to a second marriage has been 
controlled.  
57. 
Argument raised by him seems to be unfounded. First of all it may be 
seen that learned Attorney General had not stated that no law can be made 
which impinges upon a private domain but his argument was that no 
unreasonable and vague law can be made. Besides, if in any specific law,  
private rights of the individual have been curtailed, such law has not been 
upheld by the Court if it violates any Constitutional provision. It means that 
any law dealing in any manner with fundamental rights must be upheld, 
irrespective of the fact that it is vague and overbroad and suffers from 
excessive delegation.   
58. 
“Mohtasib” under Section 23(12) of the Hisba Bill, in exercise of 
additional powers conferred upon him has been empowered to observe 
decorum of Islam at the time of “Azan” and “Fard” prayer. A Muslim, 
having different school of thought from that of “Mohtasib” cannot be 
compelled to observe such decorum of Islam at the time of “Azan” and 
“Fard” prayer, which are not recognized by his faith, therefore, 
interference by the Mohtasib in such personal religious affairs of an 
Reference No.2/2005 
56
individual would tantamount to denying a fundamental right of freedom of 
Assembly and freedom to profess religion and to manage religious 
institution. The Hisba Bill has no detail of the manner, in which 
“Mohtasib” would observe decorum of Islam of the Muslim, belonging to 
different school of thought, therefore, this provision is not only vague but 
had conferred excess jurisdiction upon the “Mohtasib” and “Khilaf-warzi” 
(defiance) of any of his such instructions would call for prosecution of the 
individual. As majority of the provisions of Hisba Bill, particularly under 
discussion, suffer from vagueness, therefore, such like provision have 
always been termed unconstitutional being violative of the due process. 
Learned counsel for Government of NWFP stated that “Mohtasib” will 
only decide the issue according to the belief of that particular sect. It means 
that for deciding any issue, “Mohtasib” must possess accurate, 
comprehensive knowledge in respect of all the sects. A perusal of Section 3 
of Hisba Bill indicates that for his appointment no condition of having 
knowledge of all sects of Islam has been made as his qualification.  It may 
be noted that as it has been discussed above, saying of “prayers and 
observing decorum of Islam at the time of “Azan” and “Fard Namaz” 
cannot be regulated by means of a legislation because if non-offering of the 
prayers [Sallat] by a Muslim cannot be made a penal offence, then how it is 
possible that due to non-observing decorum of Islam at the time of Azan 
and Fard prayer, recommendation can be made for the prosecution of such 
citizen, who had made “Khilaf-warzi” (disobedience) of the order of 
“Mohtasib” in not observing decorum of Islam at the time of Azan and 
Fard prayer.  Therefore, for such reason, clause 23 (12) of Hisba Bill 
cannot impose unreasonable restriction on the right of freedom of assembly 
and religion. It may not be out of context to note at this stage that the State 
Reference No.2/2005 
57
does not regulate the private belief of individuals, but if the exercise of such 
private beliefs, in terms of the rights guaranteed under the constitution, 
causes the breach of the public order, only then the State comes forward to 
regulate such personal beliefs. In Jibendra Kishore Achharyya 
Chowdhury   v. The Province of East Pakistan (PLD 1957 SC 9), it is 
observed as follows:--- 
“………… In the light of these rules of 
construction of constitutional instruments it 
seems  to me that what Article 18 means is that 
every citizen has the right to profess, practice 
and propagate his religion and every sect of a 
religious denomination has the right to 
establish, maintain and manage its religious 
institutions, though the law may regulate the 
manner in which religion is to be professed, 
practiced 
and 
propagated 
and 
religious 
institutions are to be established, maintained 
and managed. The words “the right to establish, 
subject to law, religious institutions” cannot and 
do not mean that such institutions may be 
abolished altogether by the law. Speaking of the 
right of political franchise, Chief Justice Shaw 
of the Supreme Judicial Court of Massachusetts 
remarked in Copen  v.  Foster (12 Pick 485-
488).  
“That in all cases where the 
Constitution has conferred a 
political right or privilege, and 
where the Constitution has not 
particularly 
designated 
the 
manner in which that right is to 
be exercised, it is clearly within 
the just and constitutional limits 
of the legislative power, to 
adopt 
any 
reasonable 
and 
uniform regulations, in regard 
to the time and mode of 
exercising that rights which are 
designed to secure and facilitate 
the exercise of such right, in a 
prompt, orderly and convenient 
manner ….. Nevertheless such a 
construction would afford no 
warrant for such an exercise of 
legislative power, as under the 
pretence 
and 
colour 
of 
regulating, should subvert or 
Reference No.2/2005 
58
injuriously restrain the right 
itself.” 
 
This principle is, in my opinion, fully applicable 
to the interpretation of the extent of religious 
freedom recognized by Article 18 of our 
Constitution. That Article inter alia guarantees 
the right to establish, maintain and manage 
religious institutions, but concedes to the 
legislature the power to regulate the manner in 
which such institutions may be established, 
maintained and managed. It does not, however, 
empower the legislature to make a law that 
hereafter no institutions of a religious character 
shall be established, maintained or managed or 
that an existing religious institution shall be 
abolished. The Article appears to me to proceed 
on 
the 
well-known 
principle 
that 
while 
legislature 
may not interfere with mere 
profession or belief, law may step in when 
professions break out in open practices inviting 
breaches of peace or when belief, whether in 
publicly practicing a religion or running a 
religious institution, leads to overt acts against 
public order. In the present case no question of 
law and order being involved, I am constrained 
to differ from the view taken of this fundamental 
right by the High Court.”  
In Miss Benazir Bhutto     v.   Federation of Pakistan and others (PLD 
1988 SC 416) it has been observed that :--- 
“………………..In regard to the violation of 
Article 18 of the Constitution, the view 
expressed in Copen v. Foster, 12 Pick 485-488, 
in relation to right of political franchise was 
held to be applicable to its interpretation to the 
extent of religious freedom recognized by Article 
18 of the Constitution. And it was observed: 
“ The Article appears to me to 
proceed on the well-known 
principle that while legislature 
may not interfere with mere 
profession or belief, law may 
step in when professions break 
out in open practices inviting 
Reference No.2/2005 
59
breaches of peace or when 
belief 
whether 
in 
publicly 
practicing a religion or running 
a religious institution, leads to 
overt 
acts 
against 
public 
order.” 
 
and as no question of law and order was 
involved, the Court differed from the view taken 
of this Fundamental Right by the High Court. 
Messrs East and West Steamship Company v. 
Pakistan, PLD 1958 SC 41 follows the same 
principle as laid down in Jibendra Kishore 
Achharyya Chowdhury and others v. The 
Province of East Pakistan PLD 1957 SC 9.” 
 
In Zaheeruddin    vs.   The State (1993 SCMR 1718), in this context, it was 
held: -  
“The above views as they are prevalent, in the 
above jurisdiction, do go to show that freedom of 
religion would not be allowed to interfere with the 
law and order or public peace and tranquility. It is 
based on the principle that the State will not 
permit anyone to violate or takeaway the 
fundamental rights of others, in the enjoyment of 
his own rights and that no one can be allowed to 
insult, damage or defile the religion of any other 
class or outrage their religious feelings, so as to 
give rise to law and order situation. So whenever 
or wherever the state has reasons to believe, that 
the peace and order will be disturbed or the 
religious feelings of others may be injured, so as 
to create law and order situation, it may take such 
minimum preventive measures as will ensure law 
and order.”  
From perusal of above judgments, following principles are  highlighted.  
1. 
While legislature may not interfere with 
mere profession or belief, law may step 
in when professions breakout in open 
practices inviting breaches of peace or 
when 
belief, 
whether 
in 
publicly 
practising a religion or running a 
religious institution, lead to overt act 
against public order.  
Reference No.2/2005 
60
2.   
Whenever or wherever the State has 
reasons to believe that the peace and 
order will be disturbed or the religious 
feeling of others may be injured, so as to 
create law and order situation, it may 
take 
such 
minimum 
preventive 
measures, as will ensure law and order.  
 
59. 
Admittedly in view of the above judgments, this Court while 
following the above principles in celebrated judgment of Zaheeruddin 
(ibid), and examining constitutionality of the action taken under Section 
144 Cr.P.C. and Anti-Islamic Activities of the Quadiani Group, Lahori 
Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984 (XX of 
1984), declared the above Ordinance a valid law, holding that freedom of 
religion is based on the principle that the State will not permit any one to 
violate or takeaway the fundamental rights of others in the enjoyment of his 
own rights and that no one can be allowed to insult, damage or defy the 
religion of any other class or outrage their religious feeling, so as to give 
rise to law and order situation.  Thus, we are of the considered opinion that 
under Section 23 (12) of the Hisba Bill no restriction on freedom of 
assembly or freedom of religion, the fundamental rights guaranteed under 
the Constitution be imposed.  
60. 
Section 23 (14) confers power upon the “Mohtasib” to discourage 
un-Islamic and in-human customs.  The Provincial Assembly had failed to 
define expression “un-Islamic.” If the possibility of unanimity amongst 
different sects, on a preliminary or basic concept, is not possible, as 
observed herein-above, with reference to enquiry report of former Chief 
Justice of Pakistan Mr. Justice Muhammad Munir, that religious jurists, 
who appeared before the Enquiry Court could not develop consensus on 
definition of “Muslim,” then how is it possible that there would be 
consistency between them on the definition of “un-Islamic” and “in-
human” Customs. In this country, as far as another segment of society i.e. 
Reference No.2/2005 
61
non-Muslims (minorities) is concerned, it is not clear whether they are also 
bound to follow Islamic and human customs? In this judgment at a number 
of places, we have observed that indefinite, un-certain and not susceptible 
of being understood provision of law on account of its vagueness cannot be 
enforced for the purpose of prosecution of a person, if he is found guilty of 
disobeying any such provision, in respect whereof, he has no information/ 
notice to know that what is prohibited i.e. Islamic or un-Islamic, such law is 
treated as un-constitutional. Essentially, such a wide ranged powers 
conferred upon “Mohtasib” by Section 23(14), allowing him to create in 
his own discretion an offence for the purpose of prosecution, under Section 
28 would deny due process of law, security of a person, dignity of a man, 
freedom of speech and freedom to profess religion. This provision of law 
would also violate the freedom of trade, business or profession because if a 
citizen is indulging in such a business which according to “Mohtasib” is 
un-Islamic, he would be lodging a complaint for its prosecution, without 
determining that no restriction can be imposed, except subject to the 
provision of law. The affected persons would also be discriminated by the 
“Mohtasib” in exercising wide ranged undefined powers. Thus, the 
provisions failing to satisfy constitutional scrutiny, with reference to the 
fundamental rights discussed herein-above, are unconstitutional. 
61. 
It was vehemently contended by the learned counsel for Government 
of NWFP that Islamic State is a welfare State. The lawmakers had an 
obligation to frame laws in conformity with the Injunctions of Islam, as laid 
down in the Holy Quran and Sunnah, and to achieve the object that general 
public may live with peace and calm without transgressing on the rights of 
each other, the Government of NWFP had promulgated the Hisba Bill. To 
emphasize his arguments, he contended that the European community 
Reference No.2/2005 
62
borrowed concept of a welfare State from the Religion of Islam and in the 
modern countries like the United Kingdom general laws are being framed 
for curbing Anti Social Behaviour. He read out the whitepaper on Anti 
Social Behaviour (ABSO).  
62. 
Learned Attorney General contended that there is no cavil with 
framing laws in accordance with the Injunctions of Holy Quran and 
Sunnah and according to beliefs of different sects as per mandate of 
Constitution but provisions of Hisba Bill cannot be tested on the ground 
that in European countries, identical anti-social laws are being framed. He 
explained that ASBO law 2004 is not a vague law as it contains all 
characteristics of a valid law.  
63. 
There is no doubt that Article 227 of the Constitution mandates for 
promulgating laws in conformity with the Injunctions of Islam as laid down 
in Holy Quran and Sunnah. Explanation to Article 227 provides that the 
expression Quran and Sunnah shall mean the Quran and Sunnah as 
interpreted by any Muslim sect as far as it relates to the personal laws.  
Applying this very test on some of the provisions of Section 23 of Hisba 
Bill, we have already observed that as Hisba Bill does not provide 
definition of Islamic value and Sharia with reference to the belief of various 
Muslim sects, therefore, due to such vagueness, it is not sustainable. We are 
in quite agreement with the learned Attorney General that ASBO Law 2004 
is not a vague law as it contains intelligible, comprehensible, 
understandable and tangible provisions, therefore, Hisba Bill 2004 cannot 
be equated with the ASBO Law 2004.  
64. 
Section 23(27) of Hisba Bill confers powers upon “Mohtasib” to 
perform any other function/functions which the Provincial Mohtasib 
determines from time to time in consultation with the Advisory Council. In 
Reference No.2/2005 
63
Urdu text of the Hisba Bill ‘word’ (Amar) or (Amoor) i.e. order or orders 
has been mentioned, essentially ‘order’ mean ‘command’ as per its 
ordinary meaning. Viewing this provision with some of the other provisions 
of Section 23, which have been discussed herein-above and have been 
found vague, suffering from excessive delegation and  without definite 
legislative guidelines , it is also suffering from excessive delegation. One 
feels no hesitation in holding that by conferring sweeping  powers on 
“Mohtasib” lawgivers had conferred the authority of making laws to him 
and then to lodge prosecution against the citizens, who have made “Khilaf-
warzi” (disobedience) of his “Hukam-nama” [order], clearly places 
embargo upon exercising the fundamental rights conferred upon them 
under Article 9, 14, 20 and 25 of the Constitution. In other words, any 
thing, uttered by the “Mohtasib” in respect of ‘Amar’ or ‘Amoors’ 
(function) would become the law. Would it not be highly discriminatory. 
Legislation can delegate its powers in a number of statutes but after having 
its own control and safeguard in place which is only possible when definite 
guidelines are given, otherwise blatant conferment of powers would make 
such a statute unconstitutional. In Haji Ghulam Zameer v. A.B. Khundkar  
(PLD 1965 Dacca 156), it is observed as under:--- 
“It was next argued that the penal provision of 
the Ordinance, as embodied in sections 4, 5 and 
6 thereof, is also invalid on the ground that it is 
too vague, too wide, too undetermined and too 
volatile 
for 
anybody 
to 
understand 
and 
anticipate what acts are being prohibited by the 
Legislature. The argument is founded on the 
proposition that the expression ‘law,’ as 
embodied in Article 2 and all other Articles of 
the 
Constitution, 
connotes 
intelligible 
comprehensive, understandable and tangible 
laws. To make penal provisions in advance and 
to leave them to be applied to a maze of an 
Reference No.2/2005 
64
undefined mass of individual orders which may 
be made without even a “public notification” is 
to leave the liberty of citizens to the mercy of the 
gambling freaks of unforeseeable dooms. Each 
order served on an individual would be a code 
by itself. There can be thousands of such orders. 
This principle is specially important because 
under the Ordinance there is no requirement 
that orders made there under should be under a 
“notified order” as is the case in respect of the 
Essential Supplies (Temporary Powers) Act or 
similar enactments. An unanticipated order can, 
under the Ordinance, be made in any individual 
case and a breach thereof would attract the 
penal provisions of the Ordinance. In the 
following cases it has been held that the Act is 
too indefinite and uncertain as a penal statute, 
as it does not classify or define, with any degree 
of certainty those who are subject to the 
operation of the Act.” 
 
 
 
In the case of Asfand Yar Wali (ibid) it has been observed that:--- 
“269.  The above provisions of section 25A (e) and (g) 
in their present form suffer from excessive delegation of 
power, in that, these provisions confer unfettered 
discretion on the Chairman NAB to reject the 
recommendations of a duly appointed committee and to 
refuse to recognize a settlement arrived at between a 
creditor and a debtor. We, therefore, direct that the 
recommendations made by the Governor State Bank of 
Pakistan shall be binding on the Chairman NAB except 
for valid reasons to be assigned in writing subject to 
approval of the Accountability Court to be accorded 
within a period not exceeding seven days. Suitable 
amendment be made in Section 25A (e) and (g).” 
 In Director Food NWFP     v.   Madina Flour and General Mills (PLD 
2001 SC 1), this Court observed as followed:--- 
“8. 
It is true that Provincial Legislature is 
competent to promulgate appropriate legislation 
Reference No.2/2005 
65
for abolishing wheat quota or to regulate the 
supply of the same provided the above 
threshold-requirements 
are 
met 
and 
the 
Fundamental 
Rights 
contained 
in 
the 
Constitution are not violated. Here, the 
N.W.F.P. Government has the power to 
determine the supply of wheat in its absolute 
discretion. The law does not lay down the 
methodology or guidelines for allocation of 
wheat quota. The High Court was, therefore, 
right in holding that Article 18 and Article 25 of 
the Constitution were violated by the impugned 
legislation. We may also add that clause (a) of 
section 2 of the Act was saved by holding that 
the same is not violative of the Constitution.” 
In  Pakistan Tobacco Co. Ltd.         vs.   Government of NWFP 
(PLD 2002 SC 460) it was held “there is consensus of the judicial opinion 
that delegation of powers should not be uncontrolled, unbridled and to 
check the arbitrary attitude of the Executive in exercise of powers the 
legislature must provide some guidelines basing on the policy of the 
government to exercise such powers.”  
 In Dick Gregory     v.     City of Chicago (22 L. Ed. 2d 134), United 
State Supreme Court observed that :--  
“It is because of this truth, and a desire both to 
promote 
order 
and 
to 
safeguard 
First 
Amendment freedoms, that this Court has 
repeatedly warned States and governmental 
units 
that 
they 
cannot 
regulate 
conduct 
connected with these freedoms through use of 
sweeping dragnet statutes that may, because of 
vagueness, jeopardize these freedoms. In those 
cases, however, we have been careful to point 
out that the Constitution does not bar enactment 
of laws regulating conduct, even though 
connected with speech, press, assembly, and 
petition, if such laws specifically bar only the 
conduct deemed obnoxious and are carefully 
Reference No.2/2005 
66
and 
narrowly 
aimed 
at 
that 
forbidden 
conduct.……… ………… ………  
 
The disorderly conduct ordinance under 
which these petitioners were charged and 
convicted is not, however, a narrowly drawn 
law, particularly designed to regulate certain 
kinds of conduct such as marching or picketing 
or demonstrating along the streets or highways. 
Nor does it regulate the times or places or 
manner of carrying on such activities. To the 
contrary, it might better be described as a   
meat-ax 
ordinance, 
gathering 
in 
one 
comprehensive definition of an offense a number 
of words which have a multiplicity of meanings, 
some of which would cover activity specifically 
protected by the First Amendment. The average 
person charged with its violation is necessarily 
left uncertain as to what conduct and attitudes of 
mind would be enough to  convict under it. Who, 
for example could possibly foresee what kind of 
noise or protected speech would be held to be 
“improper”? That, of course,  would depend on 
sensibilities, nerves,  tensions and on countless 
other things…………..……………………………. 
 
Their guilt of “disorderly conduct” 
therefore turns out to be their refusal to obey 
instanter an individual policeman’s command to 
leave the area of the Mayor’s home. Since 
neither the city council nor the state legislature 
had 
enacted 
a 
narrowly 
drawn 
statute 
forbidding disruptive picketing or demonstrating 
in a residential neighborhood, the conduct 
involved here could become “disorderly” only if 
the policeman’s command was a law which the 
petitioners were bound to obey at their peril. But 
under our democratic system of government, 
lawmaking is not entrusted to the moment-to-
moment judgment of the policeman on his beat. 
Laws, that is valid laws, are to be made by 
representatives chosen to make laws for the 
future, not by police officers whose duty is to 
enforce law already enacted and to make arrests 
Reference No.2/2005 
67
only 
for 
conduct 
already 
made 
criminal……………………………” 
 
65. 
Admittedly, different parts of Section 23 discussed herein-above 
including sub-Section (27) confer unfettered/unbridled/unchanalized 
powers on “Mohtasib” under Hisba Bill being an Executive functionary for 
the purpose of this provision, therefore, these powers are liable to be 
declared ultra vires the Constitution in view of the following principles:---  
 
I.  Waris Meah     v.   State 
(PLD 1975 SC (Pak)157) 
“Here, not only is there discretion in the specified 
authorities whether they will proceed at all against 
any member of the class concerned, viz. offenders 
against the Act, but there is also an unfettered choice 
to pursue the offence in any one of three different 
modes which vary greatly in relation to the 
opportunity allowed to the alleged offender to clear 
himself, as well as to the quantum and nature of the 
penalty which he may incur. The scope of the unguided 
discretion so allowed is too great to permit of 
application of the principle that equality is not 
infringed by the mere conferment of unguided power, 
but only by its arbitrary exercise. For in the absence of 
any discernible principle guiding the choice of forum, 
among the three provided by the law, the choice must 
always be, in the judicial view point, arbitrary to a 
greater or less degree. The Act, as it is framed, makes 
provision for discrimination between persons falling, 
qua its terms, in the same class, and it does so in such 
manner as to render it impossible for the Courts to 
determine, in a particular case, whether it is being 
applied with strict regard to the requirements of 
Article 5 (1) of the Constitution.” 
 
 
II.   F.B. Ali     v.   State 
(PLD 1975 SC 506) 
“It is first sought to be contended that the Ordinances 
were not law at all because they purported to 
unreasonably deprive a citizen of even the norms of a 
Reference No.2/2005 
68
judicial trial. But this generalization cannot be 
accepted. Law has not been defined in the Constitution 
of 1962 and, therefore, in its generally accepted 
connotation, it means positive law, that is to say, a 
formal pronouncement of the will of a competent law-
giver. There is no such condition that a law must in 
order to qualify as a law also be based on reason or 
morality. The Courts cannot strike down a law on any 
such higher ethical notions nor can Courts act on the 
basis of philosophical concepts of law as pointed by 
me in the case of Asma Jilani (PLD 1972 SC 139). 
This claim was abandoned even in England as long 
ago as 1871 when Willes, J., in the case of Lee Vs. 
Bude & Torrington Junction Railway Co. (2) said:- 
“ We sit here as servants of the 
Queen and the Legislature. Are 
we to act as regents over what is 
done by parliament with the 
consent of the Queen, Lords, and 
Commons? I deny that any such 
authority 
exists 
……… 
the 
proceedings here are judicial, not 
autocratic, which they would be if 
we could make laws instead of 
administering them.” 
………………………………………
……………………………………… 
 
Where, however, the law 
itself makes no classification but 
leaves the selection to an outside 
agency or an administrative body 
without 
laying 
down 
any 
guidelines, thus enabling the 
body or authority to pick and 
choose, a legitimate complaint 
may be made on the ground that 
the 
law 
itself 
permits 
discriminatory application. Such 
was the position which came 
under consideration by this Court 
in the case of Waris Meah Vs. 
The State [PLD 1957 SC (Pak) 
157] where this Court struck 
down the law on the ground that 
it was violative of this particular 
right………………………………” 
 
 
 
3.  Province of Punjab   v.  Manzoor Ahmed 
Wattoo 
(1998 CLC 1585) 
 
 “……………………..It is clear that no guidelines or 
parameters have been provided for Government in 
making the nomination of the Sarpanch of the 
Reference No.2/2005 
69
Panchayat. The Government is free to pick and choose 
any person of its choice without any qualifications. 
The discretion of the Government has not been 
structured which is absolute and arbitrary. The 
impugned Ordinance is ex facie discriminatory. It is 
also capable of being administered in a discriminatory 
and arbitrary manner in violation of Article 25 of the 
constitution of Pakistan which guarantees the equality 
before law and equal protection of law.” 
 
 
4.     Pak. Tobacco Co. Ltd.  v.   Government 
of NWFP 
 (PLD 2002 SC 460) 
 
In Vasanthlal Manganbhai Sajanwal    v.   The State of 
Bombay, 1961 SCR 341: (AIR 1961 SC 4)  the above 
proposition was summarized in following words :- 
“A statute challenged on the 
ground of excessive delegation 
must therefore, be subject to two 
tests, (1) whether it delegates 
essential legislative function or 
power, and (2) whether the 
Legislature has enunciated its 
policy and principle for the 
guidance of the delegate.” 
 
Likewise a learned Division Bench of Lahore High 
Court, Lahore in case of Muhammad Aslam and others 
v., Punjab Government and others (1996 MLD 685) 
following the judgments from our own jurisdiction in 
the cases reported in PLD 1958 SC 41, PLD 1965. 
Dacca 156, PLD 1966 SC 854 PLD 1988 SC 416 has 
held that naked, unbridled and unguided powers 
cannot be conferred upon the outside agency like 
executive. 
66. 
The observations noted herein-above are based on the following two  
tests, (1) whether it delegates essential legislative functions or powers (2) 
whether the legislature has enunciated its policy or principle for the 
guidance of the delegatee Vasanlal Maganbhai vs. State of Bombay [AIR 
1961 SC 4]. Applying above test to the provisions of Section 23, discussed 
herein-above in detail, suggest to hold that none of these tests have been 
Reference No.2/2005 
70
fulfilled, therefore, for violation of the provisions of Articles 4, 9, 14, 16, 
18, 20, 25 of the Constitution, these provisions are not sustainable being 
ultra vires the constitution. 
67. 
The legislature is under the bounden duty to define the crime 
explicitly, putting the citizens on notice and when the statute is vague and 
the notice is denied to the citizens, it creates arbitrariness. In this behalf 
reference be made to the case of Mehram Ali (ibid). In this case Section 
5(2)(i) of the Anti-Terrorism Act was struck down because no checks or 
guidelines were provided for exercise of powers. Relevant para therefrom 
is reproduced herein below:- 
“The conferment of power on the officers referred to in 
clause (i) of subsection (2) of section 5 without being 
fired upon by the accused is not justifiable. An officer of 
any of the above forces under the present provision can 
kill any person, if he considers that in all probability the 
former is likely to commit a terrorist act or scheduled 
offence. The formation of opinion as to the probability 
or likelihood of commission of offence will vary from 
person to person as it depends on subjective satisfaction. 
There is no check or guideline provided for the exercise 
of the above power conferred by the above provision. 
We are, therefore, of the view that the aforesaid 
provision in its present form is not sustainable. The 
same may be amended and it may be provided that the 
officer can fire upon an accused person if he has been 
himself fired upon by him. 
 
68. 
It may be noted that some vague expressions i.e. “internal 
disturbances,” “illegal strikes,” “go slows and lock outs” in terms of 
Section 7-A of the Anti-Terrorism Act, 1997 came up for consideration 
before this Court in the case of Jamat-i-Islami Pakistan (ibid), and while 
taking into consideration meaning of the word ‘vague,’ it was held as 
follows:- 
Reference No.2/2005 
71
“12. 
It is well-settled that Statutes must be intelligibly 
expressed and reasonably definite and certain. An act of 
the Legislature to have the force and effect of law must be 
intelligibly express and statutes which are too vague to be 
intelligible are a nullity. Certainty being one of the prime 
requirements of a statute, a statute in order to be valid 
must be definite and certain. Anticipated difficulty in 
application of its provisions affords no reason for 
declaring a statute invalid where it is not uncertain. 
Reasonable definiteness and certainty is required in 
statues and reasonable certainty is sufficient. Reasonable 
precision, and not absolute precision or meticulous or 
mathematical exactitude, is required in the drafting of 
statutes, particularly as regards those dealing with social 
and economic problems. 
Clearly, the language of the statute and, in 
particular, statute creating an offence must be precise, 
definite and sufficiently objective so as to guard against 
an arbitrary and capricious action on the part of the State 
functionaries who are called upon to enforce the statute. 
It is well settled that penal statutes contemplate notice to 
ordinary person of what is prohibited and what is not. 
Mr. M. Akram Sheikh, learned A.S.C. for the petitioners, 
was right in contending that Article 4 of the Constitution 
relating to the rights of individual to be dealt with in 
accordance with law, is in the nature of “due process” 
clause. To enjoy protection of law and to be treated in 
accordance with law is the inalienable right of every 
citizen and no action detrimental to the life, liberty, body, 
reputation or property of any person shall be taken 
except in accordance with law. No person shall be 
prevented from or be hindered in doing that which is not 
prohibited by law and no person shall be compelled to do 
that which the law does not require him to do. Every 
citizen has the inalienable right under the Constitution to 
know what is prohibited by law and what the law does not 
require him to do. It is, therefore, incumbent upon the 
State to express in clear terms susceptible of being 
understood by an ordinary citizen of what is prohibited 
and to provide definite standards to guide discretionary 
actions of Police Officers so as to prevent arbitrary and 
discriminatory operation of section 7-A of the Act. In 
other words, it must be spelt out from a bare reading of 
Reference No.2/2005 
72
section 7-A as to what constitutes “internal disturbance,” 
“illegal strikes,”  “ go-slows” and “lock-outs” in terms 
of section 7-A of the Act. 
Likewise, in the case of Kartar Sindh   v.   State of Punjab  [1994] 3 SCC 
569], Indian Supreme Court held as follows:- 
“130. It is the basic principle of legal jurisprudence that 
an enactment is void for vagueness if its prohibitions are 
not clearly defined. Vague laws offend several important 
values. It is insisted or emphasized that laws should give 
the person of ordinary intelligence a reasonable 
opportunity to know what is prohibited, so that he may 
act accordingly. Vague laws may trap the innocent by 
not providing fair warning. Such a law impermissibly 
delegates basic policy matters to policemen and also 
judges for resolution on an ad hoc and subjective basis, 
with 
the 
attendant 
dangers 
of 
arbitrary 
and 
discriminatory application. More so uncertain and 
undefined words deployed inevitably lead citizen to 
“steer far wider of the unlawful zone, than if the 
boundaries of the forbidden areas were clearly 
marked.” 
The above principle has been reiterated by United States Supreme Court in 
the case of Margarete Papachristou     v.    City of Jacksonville  (31 L. Ed. 
2d 110). Relevant para therefrom reads as under :-- 
“This ordinance is void for vagueness, both in the sense 
that it “ fails to give a person of ordinary intelligence 
fair notice that his contemplated conduct is forbidden by 
the statute,”  United States  v Harriss. And because it 
encourages 
arbitrary 
and 
erratic 
arrests 
and 
convictions.  Thornbill v Alabma.  Living under a rule of 
law entails various suppositions, one of which is that 
“[all persons] are entitled to be informed as to what the 
State commands or forbids.” Lanzetta v New Jersey…… 
…………………………………………………………………
………………………………………………………………….. 
This aspect of the vagrancy ordinance before us is 
suggested by what this Court said in 1876 about a broad 
criminal statute enacted by Congress: “It would 
certainly be dangerous if the legislature could set a net 
Reference No.2/2005 
73
large enough to catch all possible offenders, and leave it 
to the courts to step inside and say who could be 
rightfully detained, and who should be set.” 
69. 
Section 25 of Hisba Bill has placed complete restriction on the right 
of hearing by the Courts against the proceedings before a Mohtasib. The 
right of hearing being essentially a principle of natural justice has got well-
entrenched rules in our system of administration of justice. The mere denial 
of the right of hearing to a citizen against whom Mohtasib has passed an 
order, is by itself sufficient to declare the provisions of section 25 of Hisba 
Bill to be ultra vires the constitution. Besides, no absolute ouster of 
jurisdiction of Courts is possible as the Constitution itself confers powers of 
judicial scrutiny upon the superior Courts, therefore, a subordinate 
legislature cannot take away such rights.  In the Hisba Bill the word 
“Court” has not been defined but in its ordinary meaning it would include 
the subordinate Courts as well as Superior Courts exercising constitutional 
jurisdiction.  In Abbasia Cooperative Bank (now Punjab Provincial 
Cooperative Bank Ltd) Vs. Hakeem Hafiz Muhammad Ghaus (PLD 1997 
SC 3) it was observed, as under :-- 
“5. 
The 
next 
question 
which 
arises 
for 
consideration in the case is, whether the Civil 
Court was competent to examine the validity of the 
auction conducted by the authorities? The Civil 
Court under section 9 of the Code of Civil 
Procedure are competent to try all suits of civil 
nature except those of which their jurisdiction is 
barred 
either 
expressly 
or 
by 
necessary 
implication. It is a well-settled principle of 
interpretation that the provision contained in a 
statute ousting the jurisdiction of Courts of general 
jurisdiction is to be construed very strictly and 
unless the case falls within the letter and spirit of 
the barring provision, it should not be given effect 
to. It is also well-settled law that where the 
jurisdiction of the Civil Court to examine the 
Reference No.2/2005 
74
validity of an action or an order of executive 
authority or a special tribunal is challenged on the 
ground of ouster of jurisdiction of the Civil Court, 
it must be shown (a) that the authority or the 
tribunal was validly constituted under the Act; (b) 
that the order passed or the action taken by the 
authority or tribunal was not mala fide; (c) that the 
order passed or action taken was such which could 
be passed or taken under the law which conferred 
exclusive jurisdiction on the authority or tribunal; 
and (d) that in passing the order or taking the 
action, the principles of natural justice were not 
violated. Unless all the conditions mentioned 
above are satisfied, the order or action of the 
authority or the tribunal would not be immune 
from being challenged before a Civil Court. As a 
necessary corollary, it follows that where the 
authority or the tribunal acts in violation of the 
provisions of the statutes which conferred 
jurisdiction on it or the action or order is in excess 
or lack of jurisdiction or mala fide or passed in 
violation of the principles of natural justice, such 
an order could be challenged before the Civil 
Court in spite of a provision in the statute barring 
the jurisdiction of Civil Court. In the case before 
us, the action of the Cooperative Authorities in 
auctioning the suit property for recovery of the 
loan against respondent No.1 was challenged in 
the suit as contrary to the provision of the 
Ordinance and M.L.O. 241. 
In Khan Asfandyar Wali Vs. Federation of Pakistan (PLD 2001 SC 
607),  and it was held,  as follows : 
“It was held in the case of Zafar Ali Shah (supra) 
that the powers of the superior Courts under 
Article 199 of the Constitution “remain available 
to their full extent…notwithstanding anything 
contained in any legislative instrument enacted by 
the Chief Executive” Whereas, section 9(b) of the 
NAB Ordinance purports to deny to all Courts, 
including the High Courts, the jurisdiction under 
sections 426, 491, 497, 498 and 561A or any other 
Reference No.2/2005 
75
provision of the Code of Criminal Procedure or 
any other Law for the time being in force, to grant 
bail to any person accused of an offence under the 
Nab Ordinance. It is well settled that the superior 
Courts have the power to grant bail under Article 
199 of the Constitution, independent of any 
statutory source of jurisdiction such as section 497 
of the Criminal Procedure Code, section 9(b) of the 
NAB Ordinance to that extent is ultra vires the 
Constitution. Accordingly, the same be amended 
suitably.” 
 
The above principle was also highlighted in the case of Zafar Ali 
Shah Vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 
869), the relevant para therefrom is reproduced below: - 
“Stability 
in 
the 
system, 
success 
of 
the 
Government, 
democracy, 
good 
governance, 
economic stability, prosperity of the people, 
tranquility, peace and maintenance of law and 
order depend to a considerable degree on the 
interpretation of constitution and legislative 
instruments by the superior Court. It is, therefore, 
of utmost importance that the Judiciary is 
independent and no restraints are placed on its 
performance and operation. It claims and has 
always claimed that it has the right to interpret the 
Constitution or any legislative instrument and to 
say as to what a particular provision of the 
Constitution or a legislative instrument means or 
does not mean, even if that particular provision is 
a provision seeking to oust the jurisdiction of this 
Court. Under the mandate of the constitution, the 
Court exercise their jurisdiction as conferred upon 
them by the constitution or the law. Therefore, 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 
to ensure that all persons are able to live securely 
Reference No.2/2005 
76
under the rule of law; to promote, within the 
proper limits of judicial functions, the observance 
and the attainment of human and fundamental 
Rights; and to administer justice impartially 
among persons and between the persons and the 
State, which is a sine qua non for the maintenance 
of independence of Judiciary and encouragement 
of public confidence in the Judicial system.” 
 
70. 
Section 25 of the Hisba Bill can also not survive the constitutional 
scrutiny for violation of Article 2A of the Constitution which guarantees 
fundamental rights of equality before law, freedom of thought, expression, 
belief, faith, worship and association subject to law and morality as well as 
the independence of judiciary. The language of Section 25(1) (2) of Hisba 
Bill makes it abundantly clear that by ousting the jurisdiction of the Courts 
the rights of the citizens have been curtailed and the right of access to 
justice has also been denied as discussed herein-above.  
71. 
In the present set up of administration of justice the Judicial forums 
are empowered to take cognizance of the offences which are capable to 
stand the test of constitutional scrutiny. Under Section 23 of the Hisba Bill 
the ‘Mohtasib’ has been empowered to lodge a complaint before a 
Magistrate under Section 28 for the purpose of trial of a citizen who has 
allegedly done Khilaf –warzi (defiance) of his Hukam-nama [Order]. Most 
of the provisions of Section 23 as discussed herein-above have been found 
ultra vires the Constitution. Therefore, investing powers in a Court to take 
cognizance under Section 28 on the complaint of the Mohtasib in respect of 
such offences is not warranted. Consequently, such forums created for trial 
of the citizens shall also be acting contrary to the provisions of Article 4 of 
the Constitution which guarantees that every individual should be dealt 
with in accordance with law.  Therefore, being contrary to this provision of 
the Constitution, Section 28 is declared to be ultra vires the Constitution.  
Reference No.2/2005 
77
72.   Learned counsel for NWFP Government contended:-- 
a) 
That opinion rendered by Supreme Court has no 
binding effect because it is not a decision between 
parties. 
b) 
That “Mohtasib” and the person who allegedly is 
going to be affected by this opinion is not before the 
Court as such it has no legal value 
c) 
That the decision of the Court in terms of Article 
189 is binding on the Executive and Judicial 
Authorities if rendered on a lis and Legislature is 
not bound with such decision as Court could not 
regulate the process of legislation. Thus, opinion of 
the Court would have no effect upon legislation.  
d) 
The Constitutionality of Hisba Bill could adequately 
be dealt with after its becoming an Act of Assembly, 
in appropriate proceedings. In the following 
judgments parameters have been laid down for 
assuming jurisdiction by the Courts despite absolute 
ouster clause. 
See : In re: Kerala Education Bill 1957 
 (AIR 1958 SC 956),  
In re: U/s 213 Government of India Act, 1935 
 (AIR 1944 FC 73), 
 Umayal Achi   v.   Lakshmi Achi  
 (AIR 1945 FC 25), 
 Attorney General for Ontario   v. Attorney General of 
Canada [1912] AC 571 and 
 
 Attorney General for the Province of British Columbia    
v.   Attorney General for Dominion of Canada 
 [1914] AC 153.] 
 
73. 
We have considered the judgments relied upon by the learned 
counsel. The opinions expressed therein had been overruled by subsequent 
judgments by the Indian Supreme Court itself. In re: Special Courts Bill, 
1978  (AIR 1979 SC 478), it was held as under:-- 
101. 
There was some discussion before us on the 
question as to whether the opinion rendered by this 
Court in the exercise of its advisory jurisdiction under 
Reference No.2/2005 
78
Art. 143 (1) of the Constitution is binding as law 
declared by this court within the meaning of Art. 141 of 
the Constitution. The question may have to be 
considered more fully on a future occasion but we do 
hope that the time which has been spent in determining 
the questions arising in this reference shall not have 
been spent in vain. In the cases of Estate Duty Bill, 1944 
FCR 317 at pp. 320, 332, 341: (AIR 1944 FC 73 at pp. 
74, 75, 79, 82); U. P. Legislative Assembly, (1965) 1 
SCR 413 at pp. 446, 447: (AIR 1965 SC 745 at pp. 762, 
763) and St. Xavier’s College, (1975) 1 SCR 173 at pp. 
201, 202 (AIR 1974 SC 1389 at pp, 1401, 1402) the view 
was expressed that advisory opinions do not have the 
binding force of law, In Attorney General for Ontario v, 
Attorney General for Canada (1912) AC 571 at p. 589 it 
was even said by the Privy Council that the opinions 
expressed by the Court in its advisory jurisdiction “will 
have no more effect than the opinions of the law 
officers.” On the other hand, the High Court of Calcutta 
in Ram Kishore Sen v. Union of India, AIR 1965 Cal 282 
and the High Court of Gujarat in Chhabildas Mehta v. 
Legislative Assembly, Gujarat State, (1970) 2 Guj LR, 
729 have taken the view that the opinion rendered by the 
Supreme Court under Art. 143 is law declared by it 
within the meaning of Art. 141. In The province of 
Madras v. Boddu Paidanna & Sons, 1942 FCR 90: (AIR 
1942 FC 33) the Federal Court discussed the opinion 
rendered by it in the Central Provinces case, 1939 FCR 
18: (AIR 1949 FC 1) in the same manner as one 
discussed a binding judgment. We are inclined to the 
view that though it is always open to this Court to re-
examine the question already decided by it and to 
overrule, if necessary, the view earlier taken by it, in so 
far as all other courts in the territory of India are 
concerned they ought to be bound by the view expressed 
by this Court even in exercise of its advisory jurisdiction 
under Art. 143 (1) of the Constitution. We would also 
like to draw attention to the observations made by Ray 
C.J., in St. Xaviers College (AIR 1974 SC 1389) that 
even if the opinion given in the exercise of advisory 
jurisdiction may not be binding, it is entitled to great 
weight. It would be strange that a decision given by this 
Court on a question of law in a dispute between two 
Reference No.2/2005 
79
private parties should be binding on all courts in this 
country but the advisory opinion should bind no one at 
all, even if, as in the instant case, it is given after issuing 
notice to all interested parties, after hearing everyone 
concerned who desired to be heard, and after a full 
consideration of the questions raised in the reference. 
Almost everything that could possibly be urged in favour 
of and against the Bill was urged before us and to think 
that our opinion is an exercise in futility is deeply 
frustrating.  While saying this, we are not unmindful of 
the view expressed by an eminent writer that although 
the advisory opinion given by the Supreme Court has 
high persuasive authority, it is not law declared by it 
within the meaning of Art. 141. (See Constitutional Law 
of India by H. M. Seerval, 2nd Edition, Vol II, Page 1415, 
para 25.68)  
In re: Presidential Reference No.1 of 1998 (AIR 1999 SC 1) the Court 
recorded following statement of Attorney General:--- 
“9. 
We record at the outset the statements of the 
Attorney General that .-----(1) the Union of India is not 
seeking a review or re-consideration of the judgment in 
the second Judges case, and (2) that the Union o India 
shall accept and treat as binding the answers of this 
Court to the questions set out in the Reference.”   
 
As per the material available on the official web-site of the Department of 
Justice Canada, there have been 76 references by the Federal Government 
alone to the Supreme Court since 1867 to 1981 and it states:--- 
 “the Court issues an advisory opinion in the form of 
judgment as a legal pronouncement from the highest 
Court in the land. It has always been treated as 
binding.” 
 
 Similarly Peter W. Hogg in Constitutional Law of Canada (4th Ed. Page 
227) states as under :--- 
“But there do not seem to be any recorded instances 
where a reference opinion was disregarded by the 
parties, or where it was not followed by a subsequent 
Reference No.2/2005 
80
court on the ground of its advisory character. In 
practice, reference opinions are treated in the same way 
as other judicial opinions. (emphases provided) 
Likewise, Mohamed Sameh M. Amer in The Role of the International 
Court of Justice as the Principal Judicial Organ of the United Nations 
(page 116) states as under:- 
“Thus far the ICJ has delivered advisory opinions in 
twenty-four cases, and in no case has the requesting 
organ rejected the Court’s opinion or acted contrary to 
its substance; on the contrary, the Court’s opinions have 
been received and respected by the organs.” 
74. 
National Assembly of Pakistan, after obtaining opinion from the 
Supreme Court in re: Special Reference under Article 187 of the Interim 
Constitution, on 8th July 1973 passed a resolution, expressing its opinion 
that the Government of Pakistan may accord a formal recognition to 
Bangladesh and initiate such constitutional measures as may be necessary, 
therefore, at a time when, in the judgment of the Government, such 
recognition is in the best national interest of Pakistan and will promote a 
fraternal relationship between the two communities. A writ petition was 
filed seeking declaration that the resolution passed by the National 
Assembly in its Session held on 8th July 1973 be declared to be without 
lawful authority and the respondent be restrained from announcing any 
‘recognition of Bangladesh.’ A learned Division Bench of the Lahore High 
Court while disposing of the petition in the case of Hakim Muhammad 
Anwar Babri    v.   Federation of Pakistan  (PLD 1974 Lahore 33), held as 
under :--- 
5. 
From what has been written above, it will be 
evident that the resolution in question was passed after 
obtaining the advice and opinion of the Supreme Court. 
The Supreme Court held that such a resolution could be 
passed, and after that to ask this Court to declare that 
Reference No.2/2005 
81
such a resolution could not have been passed or that it 
was without lawful authority is an attempt to ask us to sit 
in judgment over the views of the Supreme Court. 
Obviously, such an attempt cannot succeed because in 
Article 189 of the Constitution of the Islamic Republic of 
Pakistan, it is written that: - 
“Decisions of Supreme Court binding 
on other Courts-Any decision of the 
Supreme Court shall, to the extent that 
if decides a question of law or is based 
upon or enunciates a principle of law, 
be binding on all other Courts in 
Pakistan.” 
 
75. 
It is true that opinion by the Court on the reference by the President 
is not a decision between the parties but the Court undertakes an extensive 
judicial exercise during which the arguments advanced by the Advocates 
appearing on behalf of the parties summoned by the Court are evaluated 
and appreciated  and then an opinion is formed, therefore, it has binding 
effect as held in above quoted judgments as well as by eminent jurists on 
the Constitution.  
76. 
From the language of Articles 189 and 190 of the Constitution, it is 
concluded that opinion expressed by the Supreme Court in a reference 
under Article 186 is required to be esteemed utmost by all the organs of the 
State, therefore, it would not be fair to say that the opinion expressed by the 
Supreme Court on Presidential Reference under Article 186 of the 
Constitution has no binding effect.  
77. 
Under Article 116 of the Constitution, the Governor of the Province 
is required to assent to a bill which has been passed by the Assembly in 
accordance with  the Constitution. Arguments raised by learned counsel, 
firstly, are premature as at this stage it is not possible to ascertain whether 
the Governor will assent to the Bill or not.  Secondly, two positions could 
be visualized in respect of a Bill, namely, if in judicial scrutiny by this 
Court for the purpose of forming its opinion, it is held that it is intra vires 
Reference No.2/2005 
82
the Constitution then Article 116 of the Constitution would lay an 
obligation on the Governor to assent to it.  If the opinion is formed that 
either the Bill as a whole or some of its parts are ultra vires the 
Constitution then the Governor being Constitutional Head of a Province 
would not assent to the Bill particularly on noticing violation.   In present 
case, the provisions of the Hisba Bill namely Sections 10(b), (c), (d), 
12(1)(a), (b) and (c), Section 23(1), (2), (3), (5), (6), (7), (12), (14) and 
(27), Section 25(1) & (2) and Section 28 , have been declared ultra vires 
the Constitution of Islamic Republic of Pakistan, therefore, in its present 
form, the Governor is not bound to assent to the same. To strengthen this 
argument, reference may be made to Attorney General for New South 
Wales   v.  Trethowan (47 CLR 97). In this case, two bills were passed but 
without the majority of the electors, therefore, the Governor was restrained 
from assenting to the same unless and until the majority of the voters had 
approved them.   
78.  
In addition to above judgment,, this Court in a number of cases has 
held that a Government functionary is bound to obey and carry out only 
lawful orders and acts and is not bound to become a party to the acts, 
which are not in accordance with law. Reference in this behalf may be 
made to Zahid Akhtar    v.  Government of Punjab (PLD 1995 SC 530), 
Yaqoob Shah     v     XEN PESCO (PLD 2002 SC 667), Secretary 
Education NWFP   v.   Mustamir Khan  (2005 SCMR 17) and The State    
v.  Udeshi M. Ramesh  (2005 SCMR 648).  
79. 
It is equally important to note that once some of the Sections of a 
Bill have been declared unconstitutional, it would not mean that leftover 
Sections of the Bill have been declared in accordance with the Constitution. 
Their Constitutionality remains open to be questioned, which can be upheld 
Reference No.2/2005 
83
or struck down as or when challenged before a competent forum, as held by 
Irish Supreme Court in re: In the matter of Article 26 of the Constitution 
and in the matter of The Housing (Private Rented Dwellings) Bill, 1981 
([1983] I.R. 181). Relevant para therefrom reads as under:--- 
“It is to be noted that the Court’s function under Article 
26 is to ascertain and declare repugnancy (if such there 
be) to the Constitution in a referred bill or in the 
specified provision or provisions thereof. It is not the 
function of the Court to impress any part of a referred 
bill with a stamp of constitutionality. If the Court finds 
that any provision of a referred bill or of the referred 
provisions is repugnant, then the whole bill fails for the 
President is then debarred from signing it- thus 
preventing it from becoming an Act. There thus may be 
areas of a referred bill or of referred provisions of a bill 
which may be left untouched by the Court’s decision. 
The authors of a bill may therefore find the Court 
decision less illuminating than they would wish it to be.” 
 
 In the matter of Article 26 of the Constitution and in the matter of the 
Matrimonial Home Bill, 1993 [1994] 1 IR 305, the above principle of 
declaring some parts of a  Bill unconstitutional was upheld.  
80. 
Learned counsel for Government of NWFP contended that the 
Courts on the basis of legislative controversial matters between the Federal 
and Provincial Government may not invalidate the Provincial legislation. 
In support of his contention he relied upon Duport Steels Ltd.      v.   Sirs 
and others  ([1980] 1 All ER 529) and  Union of India    v.  Elphinstone 
Spinning and Weaving Co. Ltd. [2001] 4 SCC 139.  
81. 
We have examined both these judgments in light of the arguments of 
the learned counsel. The judgment in Duport Steels Ltd. (ibid) is from 
English jurisdiction, where the Courts at the relevant time, were not 
empowered to invalidate legislation for want of such Constitutional 
Reference No.2/2005 
84
mandate. Second judgment, in the case of Union of India (ibid), pertains to 
a fiscal matter. Admittedly, sufficient privilege is always given to the fiscal 
matters then to the law laid down by the Legislature, as it has been 
pronounced in Elahi Cotton Mills Ltd.      v.    Federation of Pakistan 
(PLD 1997 SC 582), wherein it has been held that “ Courts, while 
interpreting laws relating to economic activities, view the same with 
greater latitude then the laws relating to civil rights such as freedom of 
speech, religion etc., keeping in view the complexity of economic problems, 
which do not admit of solution through any doctrinaire of strait jacket 
formula. Whereas penal statutes are to be interpreted strictly against the 
State and liberally in favour of accused [Understanding Statutes 2d Ed. by 
S.M.Zafar page 243]. Therefore, following this principle, the penal statute 
calls for strict constitutional scrutiny, as such the second judgment cited by 
the learned counsel in support of his arguments is of no help to him. Thus, 
it is held that the Court seized with a Reference wherein constitutionality of 
a law/bill is required to be examined to form an opinion , it would not be 
transgressing its jurisdiction and is bound to inform the President about the 
constitutional status of the bill which is likely to become an Act of 
Parliament or Assembly. 
 
82. 
The learned counsel for NWFP Government questioned the 
maintainability of the Reference on following grounds:- 
i) 
The bill has not been enacted into law as yet, 
therefore, Reference being premature, deserves 
to be dismissed.  
 
ii) 
The request made by the Governor to the Prime 
Minister requesting him for filing of Reference 
without advice of the Chief Minster is illegal. 
 
iii) 
On the advice of the Prime Minister, the 
President is only competent to refer the question 
of law which relates to federal law and not with 
respect to a provincial law.  
 
Reference No.2/2005 
85
iv) 
Under Article 186 of the Constitution, this Court 
can only express its opinion on question of law 
whereas in instant Reference, a mixed question 
of law and fact has been raised, therefore, this 
Court is not bound to answer the same.  
 
83. 
 
Before addressing the arguments of learned counsel, it would 
be appropriate to reproduce herein-below different Articles from 
Government of India Act, 1935, Constitution of Pakistan, 1956, 
Constitution of Pakistan, 1962, Interim Constitution of Islamic Republic of 
Pakistan, 1972 and Constitution of Pakistan, 1973, conferring the advisory 
jurisdiction on the Supreme Court:- 
Government  
of 
India 
Act 
1935 
Article 213: 
(1) If at any time it appears to the Governor 
General that a question of law has arisen, or 
is likely to arise, which is of such a nature and 
of such public importance  that it is expedient 
to obtain the opinion of the Federal court 
upon it, he may in his discretion refer the 
question to that court for consideration, and 
the court may, after such a hearing as they 
think fit, report to the Governor General 
thereon. 
(2) No report shall  be made under this 
section save in accordance with an opinion 
delivered in open court with concurrence of a 
majority of the judges present at the hearing 
of the case, but noting in this subsection shall 
be deemed to prevent a  judge who does not 
concur from delivering a dissenting opinion. 
    
Constitution of 
Pakistan 1956 
Article 162: 
If at any time it appears to the President that 
a question of law has arisen, or is likely to 
arise, which is of such a nature and of such 
public important that it is expedient to obtain 
the opinion of the Supreme Court upon it, he 
may refer the question to that court for 
consideration, and the court may, after such 
hearing as it thinks fit, report its opinion 
thereon to the President.   
 
Constitution of 
Pakistan 1962 
Article 59: 
(1) If, at any time, the President considers that 
it is desirable to obtain an opinion of the 
Supreme Court on any question of law which 
he considers of public importance, he may 
refer the question to the Supreme Court for 
consideration. 
(2) The Supreme Court shall consider a 
question so referred and report its opinion on 
the question to the President. 
 
 
 
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86
Interim 
Constitution of 
the 
Islamic 
Republic 
of 
Pakistan 1972 
Article 187: 
(1) If any time, the President considers that it 
is desirable to obtain the opinion of the 
Supreme Court  on any question of law which 
he considers of public importance, he may 
refer the question to the Supreme Court for 
consideration. 
(2) The Supreme Court shall consider a 
question so referred and report its opinion on 
the question to the President.  
 
Constitution of 
Pakistan 1973 
Article 186: 
(1) If, at any time, the President considers that 
it is desirable to obtain the opinion of the 
Supreme Court on any question of law which 
he considers of public importance, he may 
refer the question to the Supreme Court for 
consideration. 
(2) The Supreme Court shall consider a 
question so referred and report its opinion on 
the question to the President.    
 
84. 
Under Article 106 of the Constitution of Peoples Republic of 
Bangladesh; Article 177 of Constitution of Republic of Sri Lanka; Article 
130 of Constitution of Malaysia; Section 19 of Constitution of Independent 
State of Papua New Guinea; Article 123 of the Constitution of Republic of 
Fiji Islands; Section 53 of the Canadian Supreme Court Act, 1985, Section 
4 of the Judicial Committee Act, 1833, “United Kingdom;” Article 26 of 
Constitution of Ireland; Article 14 of the Covenant of League of Nations 
(including amendments adopted on December, 1924), Article 65 of the 
Statute of Permanent Court of International Justice (Amendments by the 
Protocol of September 14, 1929), Article 96 of Charter of United Nations; 
Article 165 of the Statute of International Court of Justice and Article 143 
of the Indian Constitution; confer same jurisdiction upon their Supreme 
Courts as is being enjoyed by this Court. 
85. 
 Article 143 from the Indian Constitution; Section 53 of the 
Canadian Supreme Court Act, 1985 and Article 26 of the Constitution of 
Ireland, 
are 
reproduced 
herein-below 
having 
identical 
features/ 
characteristics to Article 186 of the Constitution.    
Reference No.2/2005 
87
 
 
Constitution 
of India 
Article 143: 
(1) If at any time it appears to the 
President that a question of law or fact 
has arisen, or is likely to arise, which is 
of such a nature and of such public 
importance that it is expedient to obtain 
the opinion of the Supreme Court upon 
it, he may refer the question to that 
Court for consideration and the Court 
may, after such hearing as it thinks fit, 
report to the President its opinion 
thereon. 
(2) The President may, notwithstanding 
anything in… the proviso in article 131 
refer a dispute of the kind mentioned in 
the said proviso to the Supreme Court 
for opinion and Supreme Court shall, 
after such hearing as it thinks fit, report 
to the President its opinion thereon.  
 
Canadian 
Supreme 
Court 
Act 1985 
Section 53: 
 
(1) The Governor in Council may refer 
to 
the 
Court 
for 
hearing 
and 
consideration important questions of 
law or fact concerning. 
(a) 
The 
interpretation 
of 
the 
Constitution Acts; 
(b) 
The 
constitutionality 
or 
interpretation 
of 
any 
federal 
or 
provincial legislation; 
(c) 
The 
appellate 
jurisdiction 
respecting educational matters, by the 
Constitution Act, 1867, or by any other 
Act or law vested in the Governor in 
Council; or 
(d) The powers of the Parliament of 
Canada, or of the legislatures of the 
provinces, 
or 
of 
the 
respective 
governments thereof, whether or not 
the particular power in question has 
been or is proposed to be exercised. 
(2) The Governor in Council may refer 
to 
the 
Court 
for 
hearing 
and 
consideration important questions of 
law or fact concerning any matter, 
whether or not in the opinion of the 
Court 
ejusdem 
generis 
with 
enumerations contained in subsection.  
(1), With reference to which the 
Governor in Council sees fit to submit 
any such question. 
(3) Any question concerning any of the 
matters mentioned in subsections (1) 
And (2), and referred to Court by the 
Governor 
in 
Council, 
shall 
be 
conclusively deemed to be an important 
question. 
 (4) Where a reference is made to the 
Court under subsection (1) or (2), it is 
the duty of the Court to hear and 
consider it and to answer each question 
Reference No.2/2005 
88
so referred, and the Court shall certify 
to the Governor in Council, for his 
information, its opinion on each 
question, with the reasons for each 
answer, and the opinion shall be 
pronounced in like manner as in the 
case of a judgment on an appeal to the 
Court, and any judges who differ from 
the opinion of the majority shall in like 
manner certify their opinions and their 
reasons. 
 (5) Where the question relates to the 
constitutional validity of any Act 
passed by the legislature of any 
province, or of any provision in any 
such Act, or in case, for any question, 
the attorney general of the province 
shall be notified of the hearing in order 
that the attorney general may be heard 
if he thinks fit. 
(6) The Court has power to direct that 
any person interested or, where there is 
a class of persons interested, any one 
or more persons as representatives of 
that class shall be notified of the 
hearing on any reference under this 
section, and those persons are entitled 
to be hard thereon. 
(7) The Court may, in its discretion, 
request any counsel to argue the case 
with respect to any interest that is 
affected and with respect to which 
counsel does not appear, and the 
reasonable 
expenses 
thereby 
occasioned may be paid by the Minister 
of 
Finance 
out 
of 
any 
moneys 
appropriated 
by 
Parliament 
for 
expenses of litigation.   
 
Judicial 
Committee 
Act 1833 
(United 
Kingdom) 
Section 4   His Majesty may refer any 
other matter to the committee 
….. It shall be lawful for his Majesty to 
refer to the said judicial committee for 
hearing or consideration any such 
other matter whatsoever as his Majesty 
shall think fit: and such committee shall 
thereupon hear to consider the same, 
and shall advise his Majesty thereon 
manner aforesaid. 
Constitution 
of Ireland 
Article 26 
(1) This article applies to any Bill 
passed or deemed to have been passed 
by both Houses of Parliament other 
than a Money Bill, or a Bill expressed 
to be a Bill containing a proposal to 
amend the Constitution, or a Bill the 
time for the consideration of which by 
the Senate shall have been abridged 
under Article 24. 
 
Reference No.2/2005 
89
(1.1) 
The 
President 
may, 
after 
consultation with Council of State, 
refer any Bill to which this article 
applies to the Supreme Court for a 
decision on the question as to whether 
such Bill or any specified provision or 
provisions of such Bill is or are 
repugnant to this Constitution or to any 
provision thereof. 
(1.2) Every such reference shall be 
made not later than the seventh day 
after the date on which such Bill have 
been presented by the Prime Minister 
to the President for his signature. 
(1.3) The President shall not sign any 
Bill the subject of a reference to the 
Supreme Court under this article 
pending the pronouncement of the 
decision of the Court. 
(2.1) The Supreme Court consisting of 
not less than five judges shall consider 
every question referred to it by the 
President  under this article for a 
decision, and,  having heard arguments 
by or on behalf of the Attorney General 
and by counsel assigned by the Court, 
shall pronounce its decision on such 
question in open court as soon as may 
be, and in any case not later than sixty 
days after the date of such reference. 
(2.2) The decision of the majority of the 
judges of the Supreme Court shall, for 
the purpose of this article, be the 
decision of the Court and shall 
pronounced by such one of those judges 
as the Court shall direct, and no other 
opinion, 
whether 
assenting 
or 
dissenting, shall be pronounced nor 
shall the existence of any such other 
opinion be disclosed. 
(3.1) In every case in which the 
Supreme Court decides that any 
provision of a Bill the subjection of a 
reference to the Supreme Court under 
this article is repugnant to the 
Constitution or to any provision 
thereof, the President shall decline to 
sign such Bill. 
(3.2) If, in the case of a Bill to which 
Article 27 applies, a petition has been 
addressed to the President under that 
article, that article shall be complied 
with. 
(3.3) In every other case the President 
shall sign the Bill as soon as may be 
after the date on which the decision of 
the Supreme Court shall have been 
pronounced.       
 
86. 
A comparison of above Articles with Article 186 of the Constitution,  
conferring  advisory jurisdiction  upon this Court, reveals that in Article 
Reference No.2/2005 
90
213 of the Government of India  Act 1935 and Article 162 of the 
Constitution of Pakistan, 1956,  the phrase a question of law has risen or is 
likely to arise, identical to Article 143 of the Constitution of India, has been 
used. In Article 59 and Article 187 of the Constitution, 1962 and 1972, as 
well as in Article 186 of the Constitution, 1873, words “any question of 
law” have been used. By pre-fixing word “any” scope  of Article 186 of the 
Constitution has been widened. Mr. Justice (R) Muhammad Munir, former 
Chief Justice of Pakistan  in his book  “The Commentary on the 
Constitution of Pakistan, 1973, has observed  that “present Article has 
replaced these words “any question of law” which are more comprehensive 
in their scope and cover both question of law that has arisen and question 
of law that is likely to arise.” Words  “any” has always been interpreted by 
the Courts broadly. Reference may be made to the case of Bank of 
Bahawalpur versus Chief Settlement and Rehabilitation Commissioner 
(PLD 1977 SC 164). In this case, a full bench of this Court, on the basis of 
Queen   vs.  Rowlands and others (1880) Q.B.D 5308 and Duek versus 
Bates (1884) 12 Q.B.D 79, has held that “the word “any” is an expression 
of utmost generality removing all limitations or qualifications. In 
Ch.Zahoor Elahi      vs.       The State (PLD 1977 SC 273), it was held that 
the word “any” is used at no less than 7 places in Section 13(1) (b). It is a 
word of very wide amplitude and defined in Stroud’s Judicial Dictionary 
as “a word which excludes limitations or qualifications.” Acceptably, 
Constitutional document is interpreted broadly so as to cover all 
exigencies. A narrow construction has no room in the context of 
constitutional dispensation (Understanding of Statutes – Canons – 
Construction –Second Edition 850) by S.M. Zafar. In Benazir Bhutto v. 
President of Pakistan (PLD 1998 SC 388), it was held that “Constitution is 
Reference No.2/2005 
91
the supreme law of the land to which all laws are subordinate. Constitution 
is an instrument by which government can be controlled. The provisions in 
the Constitution are to be considered in such a way which promotes 
harmony between the different provisions and should not render any 
particular provision to be redundant as the intention is that the 
Constitution should be workable to ensure survival of the system which is 
enunciated therein for the governance of the country.” In Special Re. No.1 
of 1957 (PLD 1957 SC 219) it was held that “effect should be given to 
every part and every word of the Constitution. Hence as a general rule, the 
Courts should avoid a construction which renders any provision 
meaningless or inoperative and must lean in favour of a construction which 
will render every word operative rather than one which may make some 
words idle and nugatory.” In this context, reference can also be made to 
the cases of The State     v.    Zia-ur-Rehman (PLD 1973 SC 49) and 
Federation of Pakistan  v.     Saeed Ahmed Khan (PLD 1974 SC 151). In 
Mian Muhammad Nawaz Sharif     v.  Federation of Pakistan (PLD 1993 
SC 473) it was also held that “while interpreting fundamental rights, the 
approach of the Court should be dynamic, progressive and liberal keeping 
in view ideals of the people, socio-economic and politico cultural values 
which in Pakistan are enshrined in the Objectives Resolution so as to 
extend the benefit of the same to the maximum people.” In the case of Al-
Jehad Trust versus Federation of Pakistan (PLD 1996 SC 324), it was 
held that “approach of the Court while interpreting a constitutional 
provisions has to be dynamic, progressive and oriented with the desire to 
meet the situation which has arisen effectively because efforts should be 
made to construe the provision broadly so that it may be able to meet the 
requirement of ever changing society. General words cannot be considered 
Reference No.2/2005 
92
in isolation but the same are to be considered in the context in which they 
are employed.” These observations have been reiterated in Bahadar Khan 
v.  Atta Ullah Mengal (1999 SCMR 1921) and  Pakistan Tobacco 
Company (ibid), we feel no hesitation in holding that Constitution makers 
by using the expression ‘any question of law’ in Article 186 of the 
Constitution had widened its scope and had also covered disputes which 
are likely to arise. We may observe that if such construction is not placed 
on the expression ‘any question of law’ there is apprehension that the 
provision of advisory jurisdiction will become redundant.  
87. 
The President, when desires to obtain opinion of the Supreme Court 
on any question of law which he considers of public importance, he bears 
in his mind the significance of public importance, persuading  him to seek 
opinion of Supreme Court, therefore, he being the custodian of 
Constitution, in capacity as a symbol of head of Federating units under the 
Constitution seeks guidance of the Court with no object except to avoid 
controversies and to ensure that Constitutional provisions are fully 
enforced in the good governance of Federal as well as Provincial 
Government as it may be, as such no embargo can be placed on the 
authority of the President of Pakistan to seek the advice on the question of 
law, which is likely to arise. Likewise, the Court is bound to express 
opinion in respect of those events which are likely to occur in future. At this 
juncture reference to the events that took place in Pakistan in December 
1971, would not be out of context, on account of which Bangladesh 
emerged. When confronted with such situation, a chaos was prevailing and 
the Government was not decisive either to recognize Bangladesh or not and 
to resolve the situation, it felt it necessary to move a resolution in the 
National Assembly which would express that holding of trials in Dacca or 
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outside Pakistan or among the prisoners of war or civilian internees on 
alleged criminal charges would seriously jeopardize efforts towards 
reconciliation of peace in the sub-continent and would also be contrary to 
the International Law of Justice, therefore, considering the issue to be of 
public importance a Reference on the question “can a resolution of the 
purport described in paragraph 6 above and envisaging such constitutional 
measures as may be necessary before according of formal recognition, be 
validly adopted by the National Assembly, was made by the President of 
Pakistan. Admittedly, it was purely a question which was likely to arise 
because till then National Assembly had not passed a resolution, therefore, 
in view of such a concrete example, the arguments raised by learned 
counsel for the Government of NWFP loses its value.  
88. 
In Re. Reference under section 213 of the Government of India 
Act, 1935 (AIR 1944 FC 73) it was held “the fact that the question referred 
related to future legislation cannot by itself be regarded as valid 
objection.” Section 213 of the Government of India Act, 1935, empowers 
the Governor General of India to make a Reference when questions of law 
“are likely to arise.” It is most important that in similar situation with 
which we are presently confronted i.e. whether the Hisba Bill has been 
passed by the NWFP Assembly, in accordance with the Constitution. The 
Indian Supreme Court examined the same proposition in re. Kerala 
Education Bill 1957 (AIR 1958 SC 956) and observed “The principles 
established by judicial decisions clearly indicate that the complaint that the 
questions referred to us relate to the validity, not of a Statute brought into 
force but of a bill which has yet to be passed into law by being accorded the 
assent of the President is not a good ground for not entertaining the 
reference.” Inasmuch as there are cases in which references have been 
Reference No.2/2005 
94
made even to consider proposed amendments by way of putting a bill 
before the law makers. [In re. Sea Customs Act, 1878 Section 20(2)  (AIR 
1963 SC 1760)]. In this Reference it was proposed to amend sub-section (2) 
of Section 20 of the said Act (Sea Customs Act) so as to amend the 
provisions of sub-section (1) of that section in respect of goods belonging to 
the Government of a State irrespective whether goods are used or not for 
the purposes set out in the said sub-section (2) as at present in force. One 
of the terms of Reference was “whereas governments of certain States have 
expressed the view that the amendments as proposed in the said draft of the 
Bill  (emphasis provided) may not be constitutionally valid as the 
provisions of Article 289 read with the definitions of ‘taxation’ and tax in 
clause 28 of Article 366 of the Constitution of India precluded the Union 
from imposing or authorizing the imposition of any tax, including customs 
duties and excise duties, on or in relation to any property of a State except 
to the extent permitted by clause-2 read with clause-3 of the said Article 
289.” There is yet another category of References in which the president 
filed a Reference even before Bill was tabled in the Parliament and it was 
held that it makes no difference that bill is pending, since President was 
competent to make a Reference at any stage .[In re: Special Courts Bill 
1978   (AIR 1979 SC 478)].  
89. 
 
It may not be out of context to note that in a country like 
Canada, the advisory jurisdiction of Supreme Court is invariably invoked 
and the Court had been examining legislative proposal before making the 
same as law. The jurisdiction invariably has been invoked not only in 
respect of Constitutionality of a Federal law but the constitutionality of a 
provincial law as well. Reference may be made to the Constitutional Law 
of Canada by Peter W. Hogg (244, 228 and 229), wherein the commentator 
Reference No.2/2005 
95
has observed “the reference procedure has been used mainly for 
constitutional questions. It has rarely been used to seek answers to non-
constitutional questions, although it is available for that purpose as well. 
The questions referred are usually about the constitutionality of a federal 
law (or a proposed federal law), but the constitutionality of a provincial 
law can also be referred, and this has been done from time to time.”  
90. 
The importance of seeking opinion of the Supreme Court has been 
well explained by the same author in following words:- 
“A balanced assessment of the reference procedure must 
acknowledge its utility as a means of securing an answer 
to a constitutional question. As noted earlier, the 
reference 
procedure 
has 
been 
used 
mainly 
in 
constitutional cases. This is because it enables a 
government to obtain an early and (for practical purpose) 
authoritative ruling on the constitutionality of a 
legislative programme. Sometimes questions of law are 
referred in advance of the drafting of legislation; 
sometimes draft legislation is referred before it is 
enacted; sometimes a statute is referred shortly after its 
enactment; often a statue is referred after several private 
proceedings challenging its constitutionality promise a 
prolonged period of uncertainty as the litigation slowly 
works its way up the provincial or federal court system. 
The reference procedure enables and early resolution of 
the constitutional doubt.” 
91. 
One another commentator P. Macklem, in Canadian Constitutional 
Law, Volume-I 1994, has opined that “one of the most distinctive features 
of the Canadian Judicial Review is its frequent resort to the constitutional 
reference. This frequency can be demonstrated by a survey of the leading 
cases: those reaching the Privy Council up to 1949, the Supreme Court of 
Canada thereafter, decided from 1867 to 1981. Of 282 cases involving 
constitutional issues, 77 had their origins in a constitutional reference 
while 205 involved concrete cases. Nor does the fact that over a quarter, of 
Reference No.2/2005 
96
the leading decisions were given in such proceedings reveal the full 
significance of constitutional references. In terms of impact on the political, 
social and economic affairs of the country the decisions in these cases have 
had an effect far beyond their numerical proportion.”  
92. 
The Supreme Court of Ireland has on various occasions examined 
the vires of pending bills under its advisory jurisdiction details whereof are 
available in Constitutional Law in Ireland by James Casey which reads as 
under:- 
“Article 26 has so far been used seven times, viz: 
 
(a) The Offences against the State (Amendment) Bill 
 
1940[1940] I.R.470. 
(b) The School Attendance Bill 1942[1943] I.R.334. 
(c) The Electoral Amendment Bill 1961[1961] I.R. 169 
(d) The Criminal Law (Jurisdiction) Bill 1975 [1977] 
I.R. 129. 
(e) The Emergency Powers Bill 1976 [1977] I.R. 159. 
(f) The Housing (Private Rented Dwellings) Bill 1981 
[1983]  I.R. 181. 
(g) The Electoral (Amendment) Bill 1983 [1984] 
I.L.R.M.  539.”   
93. 
Thus, above discussion leads us to conclude that President in 
exercise of powers under Article 186 of the Constitution is empowered to 
seek opinion of this Court in its advisory jurisdiction in respect of any 
question of law which has arisen or is likely to arise including the Bills 
passed by Provincial Assemblies.   
94. 
Learned counsel for NWFP relying upon the decision in Attorney 
General for Ontario versus Hamilton Street Railways Privy Council 
(1903) A.C 524, has emphasized that the courts will not decide the 
speculative question, the Supreme Court can only give decision on a 
concrete case. The argument has no substance in view of the discussion 
made herein-above. So far as, the law relied upon by him is concerned, it 
pertains to the year 1903 whereas, in the meanwhile, number of 
constitutional changes in different countries have taken place wherein the 
Reference No.2/2005 
97
advisory jurisdiction of the Courts have been extended and invoked to 
determine the constitutional questions of public importance.  
95. 
The learned counsel also relied upon ref: under Section 213 Govt. 
of India Act 1935 (AIR 1944 FC 73) and read minority opinion of Sir 
Zafarullah Khan, J. who declined to answer the question whereas the 
majority of the Hon’ble Judges had answered the reference, while holding 
“the fact that the question referred relates to future legislation cannot by 
itself be regarded as an objection.” In this very context, it was further 
observed that some instances were brought to our notice in which 
Reference had been made under the corresponding provision in the 
Canadian Supreme Court Act when the matter was at the stage of Bill. It 
may be pointed out that the comments made by Sir Zafarullah Khan in his 
judgment, were the views made by Justice Frank Furter in an article 
published by Harvard Law Review but not in a judicial decision. Reference 
may be made to footnote 13 at page 80 of the judgment. In re: Special 
Courts Bill 1978   (AIR 1979 SC 478), the Supreme Court of India ruled 
that it was not for the Court to refuse to answer the Reference. This Court 
in ref: No.1 of 1988 (PLD 1989 SC 75), reference of which has already 
been made herein-above, has expressed the same view.   
96. 
The objection of the learned counsel for NWFP that President is 
only competent to refer a question of law which relates to a federal law and 
not with respect to a provincial law is also not sustainable in view of the 
comprehensive and broad language employed in Article 186 of the 
Constitution. As per history special reference No. 1 of 1957 (PLD 1957 SC 
219), reference was made by the President asking the Supreme Court 
whether under the circumstances Governor can dissolve the Government of 
a province. Similarly, in Reference No.1 of 1988, the President of  
Reference No.2/2005 
98
Pakistan through Secretary Ministry of Law, Justice and Parliamentary 
Affairs, asked the Supreme Court whether a Chief Minister could 
authenticate expenditure from the Provincial Consolidated Fund when the 
Provincial Assembly stood dissolved. As it has been pointed out herein-
above that Indian Supreme Court also entertained a Reference dealing with 
the Provincial subject i.e Kerala Education Bill 1957 (AIR 1958 SC 956). 
Likewise, in ref: under Article 143 of the Constitution of India (AIR 1965 
SC 745), the Indian Supreme Court held as under:---- 
“At the hearing of this reference, Mr. Varina has raised 
a preliminary objection  on behalf of the Advocate 
General of Bihar. He contends that the present reference 
is invalid under Art. 143(1) because the questions 
referred to this Court are not related to any of the 
entries in Lists I and III and as such, they cannot be said 
to be concerned with any of the powers, duties or 
functions conferred on the President by the relevant 
articles of the Constitution. The argument appears to be 
that it is only in respect of matters falling within the 
powers, functions and duties of the President that it 
would be competent to him to frame questions for the 
advisory opinion of this Court under Art. 143(1). In our 
opinion, this contention is wholly misconceived. The 
words of Art. 143 (1) are wide enough to empower the 
President to forward to this Court for its advisory 
opinion any question of law or fact which has arisen or 
which is likely to arise, provided it appears to the 
President that such a question is of such a nature or of 
such public importance that it is expedient to obtain the 
opinion of this Court upon it ………”  
97. 
Identical observations have been made by this Court in ref: No.1 of 
1988 (PLD 1989 SC 75) reference of which has already been made herein-
above. In this very context under the Constitutional Law of Canada by 
Peter Hogg, reference of which has already been made, it has been 
Reference No.2/2005 
99
observed that the constitutionality of a provincial law can also be referred 
and this has been done from time to time.  
98. 
Learned counsel vehemently stressed about the competency of the 
Governor to approach the Prime Minister for filing a Reference by the 
President without seeking advice of the Chief Minister. Under Article 105 
of the Constitution, the Governor is supposed to act on the advice of the 
Chief Minister but there are certain areas where he can act in his 
discretion under the Constitution. The Constitution is silent as to how the 
Governor will communicate with the Prime Minister and if the argument of 
the learned counsel prevails, it would lead to an anomalous position that 
the Governor cannot communicate with the Prime Minster except on the 
specific advice of the Chief Minister. In the instant case, the Governor was 
involved at pre-legislative stage by the Chief Minister as he was asked to 
express his opinion about the Hisba Bill and in view of his observation the 
bill was referred to the CII but the objection raised by the Governor as well 
as by the CII in its report dated 6th September 2004, were not removed, 
therefore, the Governor who had already come into picture had no 
Constitutional restraints to communicate with the Prime Minister. The 
argument of the learned counsel in this behalf loses its value for the reason 
that it is not the Governor who had made the Reference but the President of 
Pakistan on the basis of the advice from the Prime Minister 
notwithstanding the fact as to why the Governor had communicated with 
the Prime Minster, but in any case, it cannot be considered un-
constitutional. It has been rightly held in ref: No.1 of 1988 (PLD 1989 SC 
75)  that the President is the sole judge of the public importance to question 
the desirability of referring  it to the Supreme Court. Therefore, the 
objection being without substance is kept out of consideration.  
Reference No.2/2005 
100
99. 
It is also objected to by the learned counsel that reference is not 
competent because it is not inter se the parties. This Court in exercise of 
advisory jurisdiction under Article 186 of the Constitution, has to express 
its opinion on constitutionality of the Hisba Bill, therefore, presence of the 
parties is not called for. Advisory jurisdiction of this Court is definitely 
different and distinct from the jurisdiction under Article 184 and 185 of the 
Constitution. Reference may be made to In re: Special Reference under 
Article 187 of the Interim Constitution of the Islamic Republic of 
Pakistan (PLD 1973 SC 563) wherein question with regard to adopting a 
resolution by the National Assembly for formal recognition of Bangladesh 
was examined by this Court in absence of the parties. Thus, this objection 
being without substance is turned down.  
 
 
OPINION OF THE COURT 
 
 
 
On having dilated upon the questions referred to by the 
President of Pakistan, the Court is of the unanimous opinion that 
Section 10 (Bey), (Jeem), (Dal); Section 12(1) (Alif), (Bey), (Jeem); 
Section 23(1), (2), (3), (5), (6), (7), (12), (14), (27); Section 25(1), (2) 
and Section 28 of the ‘Hisba Bill’ 2005, passed by the Provincial 
Assembly of NWFP, are ultra vires the Constitution of the Islamic 
Republic of Pakistan, 1973. The above referred Sections of the Hisba 
Bill are violative of Articles 2A, 4, 9, 14, 16, 17, 18, 19, 20 and 25 as 
well as 175 of the Constitution being vague, overbroad, unreasonable, 
based on excessive delegation of jurisdiction, denying the right of 
access to justice to the citizens and attempting to set up a parallel 
judicial system.  
Reference No.2/2005 
101
 
The Governor of the North-West Frontier Province may not 
assent to Hisba Bill in its present form as its various Sections noted 
herein-above have been declared ultra vires the Constitution of the 
Islamic Republic of Pakistan, 1973.  
 
Herein-above are the reasons for our opinion (short order) dated 
4th August, 2005. 
       REFERENCE ANSWERED ACCORDINGLY 
 
 
  
 
 
 
 
 
 
 
 
 
C.J . 
 
 
 
 
 
 
 
 
 
 
 
J.  
 
 
 
 
 
 
 
 
 
 
 
 
J. 
 
  
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
 
J. 
Islamabad, 
         August, 2005. 
Irshad /* 
 
 
APPROVED FOR REPORTING