Hasba Bill Reference Case. The Most Important Judgment on Privacy in Pakistan.

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 : 1

st, 2nd, 3rd, and 4th August, 2005.

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Reference No.2/2005

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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 19

th 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

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N.W.F.P Government (hereinafter referred to as the Provincial

Government) on 26

th 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.

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(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.

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(v) The draft bill proposes to touch upon

certain laws which fall under the

domain of Federal Legislation, interalia

the Police order. Section 2 subsection

(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

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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 18

th 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 11

th

July, 2005 and got it approved. The Governor of NWFP, on 11

th 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

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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;

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(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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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 maladministration

against any Agency or its employees:

Reference No.2/2005

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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.

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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

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(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 subsection(

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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Reference No.2/2005

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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;

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(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.

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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.

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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

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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.

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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

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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:-

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“

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

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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 20

th 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-ISHURA.

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 maladministration

by functionaries, administering tax law. Thus, establishment

of Federal and Provincial Ombudsman Offices including the Tax

Ombudsman, are successfully serving the object of checking maladministration

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.

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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 “Hukamnama”

[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 maladministration

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 noncompliance;

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 noncompliance

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 (Khilafwarzi)

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 [3

rd 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

6

th 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 154

th 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 6

th 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 6

th 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, ‘Khilafwarzi’

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 LRABI:

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 nonobservance

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.

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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

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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

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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

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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

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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

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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.

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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 “inhuman”

Customs. In this country, as far as another segment of society i.e.

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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

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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

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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 “Khilafwarzi”

(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

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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

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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-tomoment

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 lawgiver.

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

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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:-

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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

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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 wellentrenched

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

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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 reexamine

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, 2

nd 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 8

th 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

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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

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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.”

I

n 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.

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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

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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.

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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 nonconstitutional

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

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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

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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 hereinabove

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 hereinabove.

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 6

th 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 unconstitutional.

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

4

th August, 2005.

REFERENCE ANSWERED ACCORDINGLY

C.J .

J.

J.

J.

J.

J.

J.

J.

J.

Islamabad,

August, 2005.

Irshad /*

APPROVED FOR REPORTING