IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:
Justice Qazi Faez Isa, CJ
Justice Amin-ud-Din Khan
Justice Jamal Khan Mandokhail
Justice Athar Minallah
Justice Syed Hasan Azhar Rizvi

Intra Court Appeals No. 2, 3 and 4 of 2023

[On appeal from the judgment dated 15.09.2023
passed by this Court in Constitution Petition No. 21 of
2022]
AND
CMA No. 9264/2023 in ICA No. 02 of 2023

Islamic Republic of Pakistan through Secretary M/o

Law and Justice, Govt. of Pakistan, Islamabad.
(in ICA No. 2/2023)

Zuhair Ahmed Siddiqui.

(in ICA No. 3/2023)

Muhammad Zahid Imran and another.

(in ICA No. 4/2023) … Appellants/Applicant

Versus

Imran Ahmed Khan Niazi and another.

(in ICA No. 2/2023)

Imran Ahmed Khan Niazi and others.

(in ICA No. 3/2023)

Federation of Pakistan through Secretary, Law and

Justice Division, Islamabad and others.
(in ICA No. 4/2023) … Respondents

For the Appellant: Mr. M. Makhdoom Ali Khan, Sr. ASC.

(in ICA No. 2/23) Mr. Saad Mumtaz Hashmi, ASC.
Mr. Anis Muhammad Shahzad, AOR.

For the Appellant: Mr. Farooq H. Naek, Sr. ASC.

(in ICA No. 3/23) Mr. Asad Abbasi, ASC.
Shiraz Shaukat Rajpar, Advocate.
M. Waseem Abro, Advocate.

For the Appellants: Nemo.

(in ICA No. 4/23)

Respondent No. 1 & 3: Mr. Imran Ahmed Khan Niazi, In-person.

(In ICA Nos. 2, 3 & 4/23) (Through video-link from Central Jail Rawalpindi)
Intra Court Appeal No. 2/2023 etc. 2

On Court’s Notice: Khawaja Haris Ahmed, Sr. ASC.

Dr. Yasir Aman Khan, ASC.
Ms. Zainab Chaudhry, Advocate

For the Federation: Mr. Mansoor Usman Awan,

Attorney-General for Pakistan.
Ch. Aamir Rehman,
Additional Attorney-General for Pakistan.
Malik Javed Iqbal,
Additional Attorney-General for Pakistan.
Raja M. Shafqat Abbasi,
Deputy Attorney-General for Pakistan.
Mariam Ali Abbasi, Advocate.
Ahmed-ur-Rehman, Advocate.
Saad Javid Satti, Advocate.
Maryam Rasheed, Advocate.

For the NAB: Ch. Mumtaz Yousaf,

Additional Prosecutor-General, NAB.
Mr. Nasir Mehmood Mughal,
Deputy Prosecutor-General, NAB.
Ms. Amber, Special Prosecutor, NAB.
Syed Jalal Hussain, Special Prosecutor, NAB.

For Islamabad Capital

Territory: Nemo.

For Govt. of Sindh: Nemo.

For Govt. of KP: Mr. Shah Faisal Utmankhail,

Advocate-General, Khyber Pakhtunkhwa.
Mr. Shah Faisal Ilyas,
Additional Advocate-General, KP.
Mr. Kosar Ali Shah,
Additional Advocate-General, KP.

For Govt. of Punjab: Mr. Waseem Mumtaz Malik,

Additional Advocate-General, Punjab.

For Govt. of Balochistan: Mr. Muhammad Ayaz Swati,

Additional Advocate-General, Balochistan.
Mr. Tahir Iqbal Khattak,
Additional Advocate-General, Balochistan.

Dates of Hearing: 14.05.2024, 16.05.2024, 30.05.2024 and

06.06.2024.

JUDGMENT

Qazi Faez Isa CJ.

1. Constitution Petition No. 21 of 2022 (‘the Petition’) was directly filed

in the Supreme Court, under Article 184(3) of the Constitution of the
Intra Court Appeal No. 2/2023 etc. 3

Islamic Republic of Pakistan (‘the Constitution’) which only permits direct

filing provided ‘a question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part
II [of the Constitution] is involved.’ The Petition was filed by a former Prime
Minister of Pakistan, Mr. Imran Ahmed Khan Niazi (‘Mr. Niazi’), who
challenged the amendments which were made to the National
Accountability Ordinance, 1999 (‘the Ordinance’).

2. The Ordinance was enacted thirty-four days after Army Chief General
Pervez Musharraf forcibly assumed power after he was sacked. He
overthrew the constitutional-democratic order, and bestowed on himself
legislative and executive powers, and removed the judges of the superior
courts who did not endorse his take over. The preamble of the Ordinance
provided the reason for its enactment, which was, ‘to eradicate corruption
and corrupt practices and hold accountable all those persons accused of such
practices.’ However, those politicians who came over to General Musharraf
and/or joined the political party sponsored by him were exonerated. The
manner in which the provisions of the Ordinance were applied, or were
disregarded, lead to the widely held perception that the Ordinance primarily
was an instrument of political victimization and political engineering. In the
new dispensation of General Musharraf many coveted the baubles, trinkets
and pomp, which he offered, and by siding with his dictatorial rule became
complicit in the wrecking of the Constitution and the illegal and
undemocratic actions that were taken.

3. The following amendments had been made to the Ordinance:

(1) National Accountability Bureau (Amendment) Act, 2022, which

were enacted on 22 June 2022;
(2) National Accountability Bureau (2nd Amendment) Act, 2022,
which was enacted on 12 August 2022; and
(3) National Accountability Bureau (Amendment) Act, 2023, which
was enacted on 29 May 2023.

The above amendments are hereinafter respectively referred to as ‘the

1st Amendment’, ‘the 2nd Amendment’ and ‘the 3rd Amendment’ and
collectively as ‘the Amendments’. The 3rd Amendment was in the field when
the Petition was heard (six hearings took place after its promulgation) yet the
impugned judgment did not attend to it and created an anomalous situation.
Intra Court Appeal No. 2/2023 etc. 4

The 3rd Amendment was in respect of matters mentioned in sections 231 and
350 of the Code of Criminal Procedure, 1898 and in section 36 of the
Ordinance, which pertained to trials and proceedings before other Courts.

4. The Petition assailing the amendments made to the Ordinance was

filed by Mr. Niazi through a Senior Advocate of this Court, the learned
Khawaja Haris Ahmed. The Registrar questioned the maintainability of the
Petition, however, Mr. Niazi through his counsel filed a chamber appeal
challenging the order of the Registrar (Civil Miscellaneous Appeal No.
34/2022), which was heard by Ijaz ul Ahsan, J, and was allowed on 6 July
2022; it was observed that the Petition was maintainable. The Petition was
then listed for hearing in Court on 19 July 2022 when notices were issued
and after several hearings the Petition was decided on 15 September 2023.
Intra Court Appeals No. 2, 3 and 4/2023 were filed against this judgment.
When notices were issued to respondents, Mr. Niazi chose not to engage a
counsel and conveyed that he wanted to argue the matter himself. Despite
the fact that Mr. Niazi was represented by thirteen lawyers when the
Petition was heard his request was conceded to vide order dated 30 May
2024. We had already appointed on 14 May 2024 learned Khawaja Haris
Ahmed to represent Mr. Niazi and had directed the State to pay his
professional fee, however, the learned Senior Advocate graciously without
claiming any amount from the State agreed to represent Mr. Niazi.

5. During the pendency of the Petition the Supreme Court (Practice and
Procedure) Act, 2023 (‘the Act’) was enacted, on 21 April 2023. The Act
states that all cases requiring the interpretation of the Constitution must
be heard by not less than five Judges of the Supreme Court. The Petition
had stated that the amendments made to the Ordinance offended the
Constitution, therefore, to ascertain this the interpretation of the
Constitution was required. Syed Mansoor Ali Shah, J, one of the three
Hon’ble Judges hearing the Petition opined (on 18 August 2023) that the
Petition should ‘be taken up for further hearing only after the
constitutionality of the Act [which was under challenge in this Court] is
finally decided by this Court.’

6. There were 55 hearings of the Petition. The Petition was finally

decided on 15 September 2023 by a majority of two to one, Umar Ata
Bandial, CJ, and Ijaz ul Ahsan, J, allowed the petition and Syed Mansoor
Intra Court Appeal No. 2/2023 etc. 5

Ali Shah, J, dismissed it. These appeals assail the majority decision (‘the
impugned judgment’), which held as under:
‘i. The titled Constitution Petition is maintainable on
account of violating Articles 9 (security of person), 14
(inviolability of dignity of man), 24 (protection of
property rights) and 25 (equality of citizens) of the
Constitution and for affecting the public at large
because unlawful diversion of State resources from
public development projects to private use leads to
poverty, declining quality of life and injustice.

ii. Section 3 of the Second Amendment pertaining to

Section 5(o) of the NAB Ordinance that sets the
minimum pecuniary threshold of the NAB at Rs.500
million and Section 2 of the 2022 Amendments
pertaining to Section 4 of the NAB Ordinance which
limits the application of the NAB Ordinance by creating
exceptions for holders of public office are declared void
ab initio insofar as these concern the references filed
against elected holders of public office and references
filed against persons in the service of Pakistan for the
offences noted in Section 9(a)(vi)-(xii) of the NAB
Ordinance;

iii. Section 3 of the Second Amendment and Section 2 of

the 2022 Amendments pertaining to Sections 5(o) and 4
of the NAB Ordinance are declared to be valid for
references filed against persons in the Service of
Pakistan for the offences listed in Section 9(a)(i)-(v) of
the NAB Ordinance;

iv. The phrase ‘through corrupt and dishonest means’

inserted in Section 9(a)(v) of the NAB Ordinance along
with its Explanation II is struck down from the date of
commencement of the First Amendment for references
filed against elected holders of public office. To this
extent Section 8 of the First Amendment is declared
void;

v. Section 9(a)(v) of the NAB Ordinance, as amended by

Section 8 of the First Amendment, shall be retained for
references filed against persons in the service of
Pakistan;

vi. Section 14 and Section 21(g) of the NAB Ordinance are

restored from the date of commencement of the First
Amendment. Consequently, Sections 10 and 14 of the
First Amendment are declared void; and

vii. The second proviso to Section 25(b) of the NAB

Ordinance is declared to be invalid from the date of
commencement of the Second Amendment. Therefore,
Intra Court Appeal No. 2/2023 etc. 6

Section 14 of the Second Amendment is void to this

extent.’

And, as a consequence of the above the impugned judgment held,

that:
‘49. On account of our above findings, all orders passed by
the NAB and/or the Accountability Courts placing reliance on
the above Sections are declared null and void and of no legal
effect. Therefore, all inquiries, investigations and references
which have been disposed of on the basis of the struck down
Sections are restored to their positions prior to the enactment
of the 2022 Amendments and shall be deemed to be pending
before the relevant fora. The NAB and all Accountability
Courts are directed to proceed with the restored proceedings
in accordance with law. The NAB and/or all other fora shall
forthwith return the record of all such matters to the relevant
fora and in any event not later than seven days from today
which shall be proceeded with in accordance with law from
the same stage these were at when the same were disposed
of/closed/returned.’

7. Syed Mansoor Ali Shah, J, who was in the minority, dismissed the
petition, because:
‘…the majority judgment through a long winding conjectural
path of far-fetched “in turn” effects has tried hard to
“ultimately” reach an apprehended violation of the
fundamental rights. The majority judgment has also fallen
short to appreciate that what Parliament has done, Parliament
can undo; the legislative power of the Parliament is never
exhausted. If the Parliament can enact the NAB law, it can
also repeal the entire law or amend the same.’

The detailed reasons for the above short order were issued on 30
October 2023, which commenced by stating that:
‘Courts must rise above the ‘hooting throng’ and keep their
eyes set on the future of democracy, undeterred by the
changing politics of today. Courts unlike political parties don’t
have to win popular support. Courts are to decide according to
the Constitution and the law even if the public sentiment is
against them.’

Syed Mansoor Ali Shah, J, stated that, ‘only if such a legislation is in

conflict and in violation of the fundamental rights or the express provisions of
the Constitution, can the courts interfere and overturn such a legislation.’

8. The Act, save its section 4(2) which provided for retrospective right of
appeal of cases decided under Article 184(3) of the Constitution was held
Intra Court Appeal No. 2/2023 etc. 7

by the Full Court to be in accordance with the Constitution. The Act

provided a mechanism for the constitution of Supreme Court Benches in its
section 2, which may be considered to be a procedural matter, however, its
section 4 stipulated that, ‘where interpretation of the constitutional provisions is
involved’ a Bench of this Court comprising of ‘not less than five Judges of the
Supreme Court’ must hear the case. The Petition, however, was heard and
decided by a three-member Bench of this Court, which was contrary to what
the Act mandated, which required cases such as the Petition, to be heard and
decided by not less than five Judges.

9. The learned Additional Prosecutor General representing the National

Accountability Bureau (‘NAB’) stated that NAB supports the appeals.
Notices were also issued to the Advocates-General of the Provinces and the
Islamabad Capital Territory and, except for the Advocate-General of the
Khyber Pakhtunkhwa, all supported the appeals. The Attorney-General for
Pakistan also supported the appeals.

10. Learned Senior Advocate Mr. Makhdoom Ali Khan, representing the
appellant in ICA No. 2 of 2023, formulated the contentions, which were
adopted by the learned Senior Advocate Mr. Farooq H. Naek, representing
the appellant in ICA No. 3 of 2023. The learned Attorney-General for
Pakistan, the learned Advocates-General of the three provinces and of the
Islamabad Capital Territory also supported his submissions. The learned
counsel supporting the appeals submitted, as under:
i) The impugned judgment is a nullity in law as it was passed by
a Bench of this Court which was not constituted in accordance
with sections 2, 3 and 4 of the Supreme Court (Practice and
Procedure) Act, 2023 and resultantly it was coram non judice.
The Act, enacted on 21 April 2023, was challenged but the
challenge thereto was rejected by Supreme Court comprising
all of its Judges in the reported decision in the case of Raja
Amer Khan v Federation of Pakistan (PLJ 2024 Supreme Court
114). The Act was specifically brought to the attention of the
Judges hearing the Petition, and also by filing an application
(CMA No. 7066 of 2023), but the majority by order dated 29
August 2023 rejected the objections, however, they did not
dispose of the said application.
Intra Court Appeal No. 2/2023 etc. 8

ii) The Petition filed by Mr. Niazi under Article 184(3) of the
Constitution was not maintainable because of the eleven-
member Bench decision of this Court in the case of Benazir
Bhutto v Federation of Pakistan (PLD 1988 Supreme Court
416), which had held that when the same matter is pending
before a High Court then the Supreme Court should desist
from hearing it. And, since a challenge to the Amendments was
made in Writ Petition No. 2557 of 2022 filed in the Islamabad
High Court by Mr. Shoaib Shaheen the then President of the
Islamabad High Court Bar Association, therefore, the Petition
should not have been heard. It was submitted that Mr. Shoaib
Shaheen and the petitioner’s counsel in the writ petition before
the High Court, namely, Senior Advocate Mr. Hamid Khan,
belonged to Mr. Niazi’s political party. Therefore, they should
not be permitted to agitate the same matter before two Courts
simultaneously. It was further submitted that this Court
should have awaited the decision of the High Court, whereafter,
if anyone was aggrieved by the decision of the High Court such
party could have challenged it before the Supreme Court under
Article 185 of the Constitution.

iii) The amendments made to the Ordinance through the 1st

Amendment and the 2nd Amendment were struck down despite
the fact that many of them were borrowed from the ordinances
which had been enacted by the Government of which Mr. Niazi
himself was the Prime Minister, as under:

(a) Ordinance No. XXI of 2019 (‘First Amendment

Ordinance’),
(b) Ordinance No. XXVII of 2019 (‘Second Amendment
Ordinance’),
(c) Ordinance No. V of 2021 (‘Third Amendment
Ordinance’),
(d) Ordinance No. XXIII of 2021 (‘Fourth Amendment
Ordinance’), and
Intra Court Appeal No. 2/2023 etc. 9

(e) Ordinance No. XXVI of 2021 (‘Fifth Amendment

Ordinance’) (collectively referred to as ‘the Amending
Ordinances’).

iv) Mr. Niazi did not approach this Court in a bona fide manner
and his antecedents also prevented him from challenging the
Amendments, many provisions whereof were the same as those
in the Amending Ordinances, promulgated by the President of
Pakistan on his advice. It was submitted that the President’s
power to enact an ordinance is circumscribed - ‘Circumstances
exist which render it necessary to take immediate action’ (as
stipulated in Article 89(1) of the Constitution) whereas
legislation enacted by the National Assembly and Senate does
not require the existence of circumstances which render it
necessary to take immediate action. Mr. Niazi also did not have
the requisite locus standi since the Amendments neither
adversely nor personally affected him. Hearing the Petition was
an academic exercise as there was no actual controversy before
the Court, and neither any right of Mr. Niazi nor that of any
other person was adversely affected by the Amendments which
were not ex-facie discriminatory.

v) In the constitutional scheme it is for the Parliament to legislate

and for the courts to adjudicate, and courts make every effort
to uphold legislation, unless it is clearly unconstitutional.
Moreover, if there are two views possible the one in favour of
upholding the legislation is always preferred.

vi) The Amendments had sought to reduce the rigors of the

Ordinance, therefore, the same could not be stated to be
violative of citizens’ Fundamental Rights, which the Supreme
Court may enforce under Article 184(3) of the Constitution.

vii) The impugned judgment misapplied the principle of

retrospectivity in Article 12 of the Constitution which prohibits
retrospective punishment but it does not prohibit nor restrict
the grant of retrospective relief or benefit.
Intra Court Appeal No. 2/2023 etc. 10

viii) Certain provisions of the Amendments had implemented the

decisions/recommendations of the superior courts, which had
not been challenged, yet those have been negated by the
impugned judgment.

ix) The impugned judgment rewrites the Constitution, and also a

number of statutes, by creating an artificial distinction between
civil servants and public servants and elected holders of public
office and persons in the service of Pakistan, which the minority
opinion had also noted.

x) The impugned judgment accepted the limit of one hundred

million rupees prescribed in the Standard Operating
Procedures of NAB (‘SOPs’) in respect of cases which NAB can
investigate and send for trial but struck down legislation which
had increased the limit to five hundred million rupees. SOPs,
which are an administrative measure, cannot be made to
prevail over legislation enacted by Parliament.

xi) The Amendments did not decriminalize any offence. The

Amendments only changed what may be investigated by NAB
itself and the forum of the criminal trial. No person can be
adversely affected with regard to such procedural changes.

xii) If the legislature could enact the Ordinance it was also

empowered to repeal it. In the present case, the Ordinance had
not been repealed but only the Amendments had been made to
the Ordinance, yet the same were struck down.

11. While the Petition was pending adjudication the Act was enacted
almost five months before the Petition was decided. The attention of the
learned Judges hearing the Petition was specifically drawn to the Act,
which required that the Petition must be heard by ‘not less than five Judges
of the Supreme Court’, but the objection was rejected through order dated
29 August 2023 passed by Umar Ata Bandial, CJ, and Ijaz ul Ahsan, J.
However, the application (CMA No.7066/2023) submitted in this regard
was left unattended. Syed Mansoor Ali Shah, J, was correct in stating that
Intra Court Appeal No. 2/2023 etc. 11

after the promulgation of the Act the Petition could not be heard by a three-
member Bench. Had Syed Mansoor Ali Shah, J, disassociated himself from
the Bench the Petition could then not have been heard by the remaining
two Judges, nor could it have been decided by them.

12. The learned Judges who passed the impugned judgment (Umar Ata
Bandial, CJ, and Ijaz ul Ahsan, J) were also part of the Bench which had
initially heard Constitution Petitions No. 6 to 8 of 2023, through which the
Bill which later became the Act was challenged, and they had suspended its
operation. Thereafter, the said petitions were not fixed for hearing, which is
contrary to the practice of this Court because once the hearing of a case
has commenced it is not discontinued, and particularly when there is no
reason to do so. However, these petitions were not listed for hearing for the
next 100 days. The petitions which had challenged the Act were next fixed
for hearing on Monday, 18 September 2023, after the present incumbent
assumed the office of the Chief Justice of Pakistan.

13. Except its section 4(2) the challenge to the Act was repelled by the
Full Court through the judgment reported as Raja Amer Khan v Federation
of Pakistan (PLJ 2024 Supreme Court 114). The Petition, challenging the
Amendments made to the Ordinance, was not heard and decided in
accordance with the Act, which required that it be heard and decided by a
Bench of not less than five Judges of the Supreme Court. Needless to say, if
the provisions of the Act had been followed the Petition may have been
decided differently. Abiding and following the law would also have saved
considerable time of this Court and public resources as well.

14. The impugned judgment is challenged in these appeals, filed under

section 5 of the Act which provides for an appeal in respect of an order
passed in exercise of the original jurisdiction of this Court under Article
184(3) of the Constitution, before a larger Bench of the Supreme Court.
These appeals could justifiably be allowed on the ground that since the
Petition was not heard and decided as required by the Act by a five-member
Bench the impugned judgment is coram non judice and a nullity in law.
However, in deference to the learned Judges of the three-member Bench
who had spent considerable time in hearing the Petition (55 dates of
Intra Court Appeal No. 2/2023 etc. 12

hearing) it may not be appropriate to set aside the impugned judgment on

this ground alone.

15. We, accordingly, proceed to consider and determine whether the

scope the Petition and the challenge made to the Amendments came within
the constitutional jurisdiction of this Court which is directly exercised
under Article 184(3) of the Constitution. A petition may be filed directly in
the Supreme Court provided it raises (a) ‘a question of public importance’
and is (b) ‘with reference to the enforcement of any of the Fundamental
Rights conferred by Chapter 1 of Part II’ of the Constitution.

16. The majority decision states that the Petition was maintainable
because it violated the following Fundamental Rights: ‘Articles 9 (security of
person), 14 (inviolability of dignity of man), 24 (protection of property rights)
and 25 (equality of citizens).’ However, there is no discussion in the
impugned judgment stating how the Amendments made to the Ordinance
contravened these Fundamental Rights. The impugned judgment states, in
paragraph 18, that the Amendments are ‘ex-facie violating Articles 9, 14, 23
and 24 of the Constitution’; in paragraph 31, that ‘Such blanket immunity
offends Articles 9, 14, 23 and 24 of the Constitution’ and that ‘It also offends
the equal treatment command of Article 25 of the Constitution’; and, in
paragraph 35, that, ‘affects the same Fundamental Rights i.e., Articles 9, 14,
23 24 [sic.] and raises the same problems in terms of accountability of
elected holders of public office.’ However, these statements made in the
impugned judgment are not explained nor are the Amendments analyzed in
relation to the stated Fundamental Rights to ascertain and determine
whether they were in conflict with them.

17. It does not suffice that the original jurisdiction of the Supreme Court
under Article 184(3) of the Constitution is exercised by simply mentioning
that one or more Fundamental Rights are contravened. This approach does
not conform with the constitutional requirement. The Constitution only
permits the Supreme Court to exercise its jurisdiction provided the stated
two pre-requisites (mentioned above in paragraph 15) exist. The stated
conditions prescribed by the Constitution can not be ignored nor
redundancy attributed to them. There must be a clear nexus between the
legislation under challenge with the enforcement of any of the Fundamental
Intra Court Appeal No. 2/2023 etc. 13

Rights and it must be established that the same are violated or that the
enforcement of such Fundamental Rights is undermined. Regretfully, the
impugned judgment did not do so. We are also not persuaded by Mr. Niazi
and learned Senior Advocate Khawaja Haris Ahmed that the Amendments
violated the Constitution. Jurisdiction, with respect, was assumed by the
learned Judges in disregard of the mandate of Article 184(3) of the
Constitution, and having done so the provisions of the Amendments were
minutely examined, and in doing so a cardinal feature of the Constitution
was also disregarded.

18. The Constitution distributes functions amongst the different

constitutional bodies that are set up thereunder, including the legislature,
the primary function of which is to make laws. Till a law or any provision
thereof is successfully challenged and struck down by a High Court, the
Federal Shariat Court or by the Supreme Court it must be construed to be
validly enacted, and it must be abided by. Legislation can also not be
treated at par with Executive action/inaction. Unlike suspending and/or
striking down the action of the Executive, or directing it to act, under
Articles 199 or 184(3) of the Constitution, legislation enacted by Parliament
or a Provincial Assembly, must be treated with respect and obeyed. And, if,
and only if, legislation contravenes the Constitution, and it be so declared
by a superior court having jurisdiction, the same continues to subsist.
Unfortunately, we note that this fundamental principle was twice lost sight
of, first, in disregarding the Act and then in substituting what the majority
of the learned Judges considered in their personal opinion to be better than
what was expressed by the elected representatives of the people and which
was enacted by Parliament through the Amendments. Merely because this
Court considers that it could have drafted or formulated a law better than
Parliament does not empower it to strike down or disregard legislation
enacted by Parliament.

19. The impugned judgment did not test the Amendments on the
touchstone of the Constitution, it instead proceeded to consider the
Amendments by applying their lordships’ own criteria and yardstick, which,
with respect, was not permissible in terms of the Constitution. Needless to
state, Judges must abide, as their oath of office prescribes, by ‘the
Constitution of the Islamic Republic of Pakistan and the law.’ Unless the law
Intra Court Appeal No. 2/2023 etc. 14

is clearly found to offend the Constitution, and it is first so declared, it

cannot be disregarded or struck down. The Petition had challenged the
Amendments, therefore, it had to be established that the two pre-requisites
of Article 184(3) of the Constitution (mentioned above) were met.

20. The impugned judgment did not demonstrate how the Amendments
violated or infringed any of the Fundamental Rights which were cursorily
mentioned therein. The impugned judgment had referred to Article 9
(security of person) but did not even briefly explain how anyone’s security
was undermined or affected by the Amendments. Reference was also made
to Article 14 (inviolability of dignity of man) but there was no explanation
forthcoming on how any of the Amendments had affected anyone’s dignity.
The next reference in the impugned judgment was to Article 25 (equality of
citizens) but once again no explanation was offered nor was it elaborated
how citizens were being subjected to different laws or were being treated
differently. Passing reference was also made to Article 23 (provision as to
property) and to Article 24 (protection of property) but neither of these
Articles were expounded or elucidated with regard to the Amendments, let
alone that the Amendments, or any part thereof, offended either of them.
Without stating, demonstrating and then establishing that the
Amendments, or any of its provisions did not conform to the said
Fundamental Rights, the same could not be struck down.

21. In view of the aforesaid the Petition should not have been allowed; it
merited dismissal. Having arrived at this conclusion we need not consider
the remaining submissions of the appellant’s counsel and those who
supported them, including that some of the Amendments gave effect to the
decisions of the superior Court, that Mr. Niazi himself was the architect of
many of the provisions which were later incorporated into the Amendments
and that Mr. Niazi did not act bona fide.

22. The Supreme Court whenever possible must try to uphold legislation
rather than rush to strike it down, and if there be two or more
interpretations of any legislation to adopt the interpretation which upholds
it. This does not mean that when the law, or any provision thereof, is
unconstitutional it should not be so declared and struck down. However,
the Petition and the impugned judgment failed to establish that the
Intra Court Appeal No. 2/2023 etc. 15

Amendments were unconstitutional, nor have we been so persuaded in this

regard.

23. The Constitution has set out the respective roles of the Legislature
and that of the Judiciary and every care should be taken to ensure that
neither encroaches onto the domain of the other. Constitutional institutions
better serve the people when they respect each other and perform the
functions respectively granted to them by the Constitution. The Chief
Justice and the Judges of the Supreme Court are not the gatekeepers of
Parliament.

24. Therefore, for the aforesaid reasons, we allow these appeals by setting
aside the impugned judgment, and dismiss the Petition. However, there is
no order as to costs.

Chief Justice

Judge

Judge

Judge
I agree with the conclusion but I am unable to concur with the reasons.
So, I will give my own reasoning through a separate note.

Judge
Islamabad
(M. Tauseef)

Announced in open Court at Islamabad on 6 September 2024.

Chief Justice.

Approved for reporting

 I have carefully read the opinion eloquently authored by the
Chief Justice and I concur that the impugned majority judgment is
liable to be set aside. With profound respect, in my opinion the appeal
filed by the Federation was not competent under section 5 of the
Supreme Court (Practice and Procedure) Act, 2023 and the same is
hereby dismissed. However, the appeals preferred by the private
appellants were maintainable and the same are allowed.
Consequently, the impugned judgment is set aside. Moreover, the
opinion recorded in the minority judgment is affirmed to the effect
that members of the Armed Forces and Judges of the constitutional
courts are not immune from accountability under the National
Accountability Ordinance, 1999. The detailed reasons shall be
recorded later.

(Athar Minallah)
Judge