SHARAF FARIDI and 3 Others Versus - P L D 1989 Karachi 404

SHARAF FARIDI and 3 others
Versus
The Federation of Islamic Republic of Pakistan
through Prime Minister of Pakistan and another.
P L D 1989 Karachi 404
Present: Ajmal Mian, C.J.,

Saeeduzzaman Siddiqui, Saleem Akhtar, Haider Ali
Pirzada, Syed Abdur Rehman, Abdul Rasool Agha,
and Manoon Kazi, JJ.
ARTICLE-175
Constitution of Islamic Republic of Pakistan, 1973
• Establishment and jurisdiction of courts.—

• (1) There shall be a Supreme Court of Pakistan,
a High Court for each Province and such other
Courts as may be established by law.
• (2) No Court shall have any jurisdiction save as
is or may be conferred on it by the Constitution
or by or under any law.
• (3) The Judiciary shall be separated
progressively from the Executive within fourteen
years from the commencing day.
• Art. 175--Establishment and jurisdiction of
Courts---Separation of judiciary---
Requirement of Art.175 will be made if the
Judiciary has effective say in formulation
of its annual demands--Executive should
place annual funds as per requirements at
the disposal of the Judiciary for operating
it without being interfered with by any
agency of Executive.
• Arts. 177, 182, 193, & 196---Appointments of the
Chief Justice of Pakistan and Judges of the
Supreme Court and Chief Justice and Judges of
High Court by the President---Consultation with
the Chief Justice of Pakistan and the Chief
Justice of the High Court concerned by the
President should be meaningful.
• Samsher Singh v. State of Punjab and another

AIR 1974 SC 2192; S. P. Gupta and others v.
President of India and others AIR 1982 SC 149
and State of Kerala v. A. Lakshmikutty and
others AIR 1987 SC 331 ref.
• Art. 199---High Court, in its
Constitutional jurisdiction cannot
declare any of the Constitutional
provisions as ultra vires.
ARTICLE-203
Constitution of Islamic Republic of Pakistan, 1973
• High Court to superintendent

subordinate courts.—Each High Court
shall supervise and control all courts
subordinate to it.
• Art. 203---Supervisory jurisdiction of High Court--
-Provisions of Art. 203 relate more to
administrative aspect than the judicial aspect.
• The High Court exercises supervisory

jurisdiction of two types i.e. judicial which is
conferred on the High Court by virtue of Article
199 of the Constitution, provisions in the Civil
Procedure Code, Criminal Procedure Code and
the other relevant enactments either as an
Appellate Court or Revisional Court and the
second type of supervisory jurisdiction is
administrative.
• Article 203 relates more to administrative
aspect than the Judicial aspect.
• Abdul Rehman v. Mst. Chaman Ara PLD

1972 Kar. 164 and Karim Bakhsh v. Mst.
Mubarik Jan PLD 1970 Pesh. 169 ref.
• Arts. 203, 175 & 2-A---Supervision and control
over the subordinate Judiciary vested in the
High Court under Art. 203, keeping in view Art.
175, is exclusive in nature, comprehensive in
extent and effective in operation and
comprehends the administrative power as to the
working of the subordinate Courts and
disciplinary jurisdiction over the subordinate
judicial officers---Any provision in an Act or any
rule or a notification empowering any executive
functionary to have administrative supervision
and control over the subordinate Judiciary will
be violative of Art. 203, Constitution of Pakistan
and will militate against the concept of
separation and independence of Judiciary as
envisaged by Art. 175 of the Constitution and the
Objectives Resolution.
• Arts. 175, 203 & 199---High Court can
issue a direction to the Federal and
Provincial Governments to initiate
legislative measures for bringing the
existing laws in conformity with Arts. 175 &
203 of the Constitution---Directions issued
accordingly.
• There is a marked distinction between a

direction to the legislature to legislate and
a direction to the Executive to initiate
legislative measures to bring the existing
laws in conformity with provisions of the
Constitution. The latter is permissible.
• Art. 50---Parliament, in Constitution of
Pakistan, does not enjoy the supreme
status like the British Parliament.
• Arts.9, 175, 196(b), 200(1)(4) & 203-C(4-
B), (5)---Articles 196(b), 200(1)(4) & 203-
C(4-B), (5) of the Constitution are not only
in conflict with Art. 175 of the Constitution
but they encroach upon the Fundamental
Right which guarantees a fair and proper
trial by an impartial and independent
Judiciary---Denial and failure to
establish independent Courts and
Tribunals by separating them from
Executive therefore negates Art. 9 of
the Constitution.
• Duty of Government to ensure
compliance of the Constitutional
provisions. Ziaur Rehman’s case PLD
1973 SC 49 REF.
• Arts. 175, 199 & 9---Mandatory duty is
cast upon the Executive and Legislature to
separate the Judiciary from the Executive-
--Executive having remained completely
silent, dormant and unconcerned, such
omission to exercise jurisdiction not only
violates Art.175 but infringes Fundamental
Rights as well---High Court, in such
circumstances, can pass order and give
direction in mandatory form to ensure
enforcement of the provisions of the
Constitution and to prevent breach of
Fundamental Right.
PRAYER
The petitioners therefore pray as under:-
a. That this Hon’ble Court be pleased to declare that the Sind
Ordinance X of 1973, the Sind Civil Servants (Efficiency and
Discipline) Rules, 1973 and the Notification dated
23.10.1973 are without lawful authority and of no legal effect
and ultra vires of the Constitution to the extent of
inconsistency with, contradiction to and in violation of
Articles 4,14,175 and 203, of the Constitution ; and/or
b. That this Hon’ble Court be pleased to restrain the
Respondent from giving effect directly or indirectly to the
provisions of the impugned Ordinance and Rules made and
the Notification issued there under to the extent of
inconsistency with, contradiction to and in violation of
Articles 4, 14, 175 and 203 of the Constitution; and/or
c. That this Hon’ble Court be pleased to award costs of the
petition;
d. That this Hon’ble Court be pleased to grant such other relief
as may be deemed necessary and just in the circumstances
of the case.”
• Mr. Sharaf Faridi in furtherance of his above first
submission that after the expiry of the period
specified in Article 175 of the Constitution of the
Islamic Republic of Pakistan, this Court is
competent to enforce the provision of the above
Article as to the separation of judiciary from the
executive has invited our attention to Article 175
and has contended that sub-clauses (1) and (3)
of the above Article are to be read in conjunction
and, therefore, the superior as well as
subordinate judiciary should have been
progressively separated from the executive
within 14 years period, which expired on
14.8.1987.
ORDER OF THE COURT
• Since 5 learned Judges have concurred

with the judgment of Ajmal Mian,C.J. and ,
as there is no dissenting judgment, the
petition is allowed in terms of the above
majority judgment.

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SHARAF FARIDI and 3 others

P L D 1989 Karachi 404

Present: Ajmal Mian, C.J.,

• Establishment and jurisdiction of courts.—

• Samsher Singh v. State of Punjab and another

• High Court to superintendent

• The High Court exercises supervisory

• Abdul Rehman v. Mst. Chaman Ara PLD

• There is a marked distinction between a

• Since 5 learned Judges have concurred

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