IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction)

1. Workers Party Pakistan through Mr Akhtar Hussain Advocate, General Secretary, 5 Mc eod !oad, ahore"

2. Senator Mir Hasil #i$en%o, Senior &ice President, 'ational Party, ()*+,, Parlia-entary odges, .sla-a/ad"

3. 0hursheed Ah-ad, General Secretary, 1on2ederation o2 3rade 4nions o2 Pakistan, #akhtiar a/our Hall, *5 'is/et !oad, ahore"

4. 0ani$ 6ati-a, President, Pakistan 3rade 4nion 6ederation (!egd), 0M1 #uilding, Gu%roo 'ala, 0ha-osh 1olony, 0arachi"

5. 1haudhry 6ateh Muha--ad, President, Pakistan 0isaan 1o--ittee, 1hak 7+5 G#, 3o/a 3ek Singh"

6. 3ahira Ma$har Ali 0han, President, 8e-ocratic Wo-en9s Association, 7 Shah Ja-al, ahore"

7. 8r Osa-a Siddi:ue, Associate Pro2essor, 6aculty o2 a; < Policy, ahore 4niversity o2 Manage-ent Sciences ( 4MS), =>* 1ollege !oad, GO! ., ahore"

...PETITIONERS

Versus

1. 3he 6ederation o2 Pakistan" 2. Ministry o2 a;, Justice < Parlia-entary A22airs"

RESPONDENTS

PETITION UNDER ARTICLE 184 (3) OF THE CONSTITUTION OF PAKISTAN 1!"3

!es?ect2ully She;eth@

A" 3hat Petitioner 'o@ A is a registered ?olitical ?arty that /elieves in and ;orks to;ards the e-anci?ation o2 the ;orking classes" .ts -e-/ershi? co-?rises largely o2 -iddle, lo;er -iddle and ;orking class ?eo?le ;ho cannot i-agine ?artici?ating in the ga-e o2 elections that goes on in this country no; and then to ?roduce the 2arce called Bre?resentative govern-entC" While Petitioner 'o@ A, the ?arty, stands 2or-ed, it ;ill continue to /e denied the 2ull reali$ation o2 its 6unda-ental !ight guaranteed /y Article A, o2 the 1onstitution unless it can meaningfully participate in the ?rocess that leads to the 2or-ation o2 govern-ent in this country i"e unless elections /egin to /e held in a ;ay that ena/les not %ust a certain ruling elite, /ut the /roadest s?ectru- o2 ?eo?le to ?artici?ate in the-"

(Mani2esto o2 Workers Party Pakistan is AnneD A)

*" 3hat Petitioner 'o@ * is a Senator 2ro- #alochistan" He is the duly elected Senior &ice President o2 'ational Party, a ?arty co--itted to the esta/lish-ent o2 a ;el2are state 2ree 2ro- 2eudal, tri/al and other anti ?eo?le in2luences" 'ational Party ;orks 2or a truly re?resentative de-ocracy in a genuine 2ederal set u? ;ith e:ual rights to all 2ederating units"

(Mani2esto o2 'ational Party is AnneD #)

7" 3hat Petitioner 'o@ 7 is a trade unionist ;ith al-ost a hal2 century /ehind hi- o2 struggling 2or the rights o2 the ;orking class" 1urrently, he is General Secretary o2 Pakistan WAP8A Hydro (lectric 1entral a/our 4nion

(1#A)" Petitioner 'o@ 7 has re?resented Pakistan on the (Decutive #oard o2 the .nternational a/our Organisation (. O) 2or several years"

E" 3hat Petitioner 'o@ E has /een a trade unionist 2or the last 2i2ty years" She is the President o2 the Pakistan 3rade 4nion 6ederation (!egd) a /ody ;ith

-ore than 2i2ty a22iliated 3rade 4nions across the country" She has re?resented ;orkers in tri?artite con2erences held /y the Govern-ent o2 Pakistan 2ro- ti-e to ti-e and has also re?resented the Pakistani ;orking class in various ;orld /odies including the . O"

5" 3hat Petitioner 'o@ 5 is a longti-e ?olitical ;orker ?articularly concerned ;ith the tillers o2 the land including tentants, landless la/ourers and s-all land o;ners" He is the elected President o2 Pakistan 0isan 1o--ittee ;hich stands 2or the a/olition o2 2eudal syste- through land re2or-s and 2or a true re?resentation o2 the toiling -asses in elected /odies"

=" 3hat Petitioner 'o@ = is a veteran ?olitical and ;o-en rights9 activist" She is the 2ounder and current President o2 the 8e-ocratic Wo-en9s Association o2 Pakistan (a22iliated ;ith the ;orld 6ederation o2 8e-ocratic Wo-en)" She is also one o2 the 2ounding -e-/ers o2 Wo-en9s Action 6oru- (WA6) and Joint Action 1o--ittee (JA1) 2or Peo?les9 !ights"

," 3hat Petitioner 'o@ , is a legal acade-ic and %ustice sector re2or- eD?ert"

He is the 2ounding 1hair o2 and an Associate Pro2essor at the 8e?art-ent o2

a; and Policy at the ahore 4niversity o2 Manage-ent Sciences ( 4MS)" He ;as !hodes Scholar at the 4niversity o2 OD2ord and holds a doctorate in la; 2ro- Harvard 4niversity"

5" 3hat this ?etition under Article A5E (7) o2 the 1onstitution raises :uestions o2 ?u/lic i-?ortance ;ith re2erence, inter alia, to the en2orce-ent o2 the Petitioners9 and the general citi$enry9s 6unda-ental !ights" 3he ?resent Petitioners have also 2iled another ?etition under Article A5E (7) o2 the 1onstitution calling in :uestion the ?er-issi/le electoral ?ractices in Pakistan" .t is su/-itted that the instant ?etition /e vie;ed, not only in its o;n right as one that raises the i--ensely i-?ortant :uestion o2 2eudalisand land re2or-s in Pakistan /ut also that it /e vie;ed in the conteDt o2 electoral ?ractices as ;ell"

.n that conteDt, it is su/-itted, that the eDisting 2eudal lando;ning syste- in this country -akes the current election ?rocess largely -eaningless as a ?rocess that is su??osed to entitle ?eo?le to 2reely choose their true re?resentatives" 3his is es?ecially true 2or rural constituencies ;here the landlords reign su?re-e" 3his syste- is such that even i2 this 1ourt ;ere to grant all the relie2s ?rayed

2or in the Petitioners9 ?revious ?etition relating to electoral ca-?aigns, they ;ill /e o2 little /ene2it in areas do-inated /y the /ig lando;ners" 6or this i-?ortant reason, /ut also 2or the ?ri-ary and -ore i-?ortant reason that this syste- o2 land o;ning is 2unda-entally inhu-an and eD?loitative, it is not %ust desira/le, /ut necessary and a/solutely according to the -andate o2 the 1onstitution that it should /e a/olished"

.deally, there should /e legislation re:uiring the unscru?ulous /ene2iciaries o2 this syste- to account 2or all that they have a-assed under this syste- 2or the last =E years" #ut that ;ould have to /e the ;ork o2 a truly re?resentative ?eo?les9 govern-ent" 3his ?etition concerns itsel2 ;ith legislation that ;as actually -ade to /ring a/out land re2or-s in this country, a ste? so i-?ortant and necessary that ;ithout it, the econo-ic eD?loitation o2 a huge -ass o2 ?o?ulation cannot end, the 2reedo- guaranteed /y Article A, cannot /e 2ully en%oyed, and the -andate o2 Articles 5A and **E that elections shall /e B2reeC cannot /e 2ul2illed"

A" 3hat the 2unda-entals o2 a de-ocratic election ?rocess -ust ?resu??ose # $e%e$ &$#'()* +(e$, 2or each and every candidate" 'ot only does the lando;ning

syste- i-?ede 2ree vote, it actually ensures that no one in a rural constituency can /egin to consider contesting elections unless his>her social and ?olitical in2luence -atches that o2 the land o;ner" 3he lando;ning structure in this country i?so 2acto de?rives the rural citi$ens, not only o2 the right to vote 2reely, /ut also o2 the level ?laying 2ield that ;ould ena/le the- to contest 2or elections"

3he right to elect and choose ones re?resentatives is the essence o2 re?resentative de-ocracy and such a de-ocracy cannot even /egin to /e ?erceived i2 it is clogged /y arti2icial hurdles such as those ?laced on the electoral syste- /y the very eDistence o2 the land o;ning syste- in Pakistan"

*" 3hat land re2or-s sought to /e i-?le-ented /y M ! AA5 o2 AF,* (B!egulationsC) and the and !e2or-s Act AF,, (the BActC or the B and

!e2or-s ActC) ;ere, in large ?art, declared unisla-ic /y a %udg-ent in a??eal (i"e the Ga$al/ash Wa:2 1ase (P 8 AFF+ S1 FF)) 2ro- a decision o2 the 6ederal Shariat 1ourt (P 8 AF5A 6S1 *7)" .t is su/-itted that the a??eal ;as ;rongly decided on -erits, /ut -ore i-?ortantly, on an erroneous assu-?tion o2 %urisdiction" .t is su/-itted that the decision re:uires reconsideration, inter

alia, 2or the reason that it has a22ected Article A, and Article 5A o2 the 1onstitution, rendered Article *E (7) (2) and Article *57 (A) redundant and nugatory and a22ected the %urisdiction o2 this honoura/le 1ourt and that this goes to the root o2 the su/-ission that %urisdiction ;as ;rongly assu-ed /y the A??ellate 1ourt"

7" 3hat in the %udg-ent o2 the 2irst instance the 6ederal Shariat 1ourt, /esides dis-issing the challenge to M ! AA5 and the and !e2or-s Act AF,, on

-erits, also held that it did not have %urisdiction to eDa-ine these la;s" 3his ;as held, inter alia, 2or the reason that 1ha?ter 7)A eDcludes the BconstitutionC 2ro- the de2inition o2 Bla;sC that the 6S1 has %urisdiction to eDa-ine on the touchstone o2 .sla- and assu-?tion o2 %urisdiction to eDa-ine these la;s ;ould inevita/ly a22ect ?rovisions o2 the 1onstitution including Articles *E, *57 and *=F" 4n2ortunately, the A??ellate 1ourt 2ound other;ise and assu-ed %urisdiction regardless o2 the 2act that doing so rendered at least t;o ?rovisions o2 the 1onstitution co-?letely nugatory and a22ected several other ?rovisions also /y cutting do;n their a-/it"

-ur(s,(./(0)1

3he only ela/orate note on the :uestion o2 %urisdiction in the A??ellate 1ourt ;as ;ritten /y Mr Justice Sha2i ur !eh-an" 3he honour/le %udge9s reasons)))2or holding that the 6S1 had %urisdiction to eDa-ine the !egulations and the and !e2or-s Act AF,, des?ite the -andate o2 Article *57 and its rein2orce-ent and validation /y su/)clause (2) o2 Article *E (7))) and the Petitioners9 su/-issions as to ;hy the reasons are 2la;ed and -ust /e revisited, are as 2ollo;s@

i" .n large ?art, the case hinged on the inter?retation o2 Article *57, the relevant ?art o2 ;hich is as 2ollo;s@

253 (1) Majlis e Shoora may by law:

(a) Prescribe the ma im!m limits as to "ro"erty or any class thereo# which may be owne$% hel$% "ossesse$ or controlle$ by any "erson& an$ (b) ''''''''''''''

(2)

(ny law which "ermits a "erson to own bene#icially or

"ossess bene#icially an area o# lan$ )reater than that which% imme$iately be#ore the commencin) $ay% he co!l$ ha*e law#!lly owne$ bene#icially or "ossesse$ bene#icially% shall be in*ali$.

.t ;ill /e a??arent that the 2irst ?art, i"e clause (A) (a) is the ?rovision under ;hich the Act ;as -ade ;hile clause (*) ?rotects the redistri/ution o2 land under the !egulations"

3he learned %udge acce?ts that assu-ing %urisdiction in this case and declaring ?rovisions o2 the !egulations and the and !e2or-s Act

re?ugnant to .sla- ;ould contravene ;hat is ?rescri/ed in Article *57" He states that the :uestion is ;hether or not B%udicial ?ronounce-entsC are included in the ;ord Bla;C used in Article *57 (*)" He goes on to state that i2 the ;ord Bla;C in this clause does not include B%udicial ?ronounce-entsC, then the 6S1 is entitled to -ake such a ?ronounce-ent and strike do;n land re2or-s as unisla-ic"

According to hi- the ?rotection ?rovided /y clause (*) is 2ro- Bla;sC enacted /y Parlia-ent and not 2ro- %udicial ?ronounce-ents" He then ?roceeds to hold that the ter- la; in that clause does not include B%udicial ?ronounce-entsC and 2or this he relies on t;o argu-ents"

6irst, he 2inds that the ;ord la; used in clause (A) o2 Article *57 clearly -eans only a la; 2ra-ed /y ?arlia-ent and that the sa-e ;ord, Bla;C, used in clause (*) should also /e taken to re2er only to la;s 2ra-ed /y ?arlia-ent /ecause, according to hi-, the B two cla!ses o# this% (rticle (253)% are co'e tensi*e with re)ar$ to the so!rce o# the law an$ there is no reason to e ten$ the connotation o# law in cla!se (2) to j!$icial "rono!ncementsC"

.t is su/-itted ;ith res?ect that this reasoning is 2unda-entally 2la;ed" 3here is every reason to understand that the ;ord la; in clause (*) includes %udicial ?ronounce-ents ;hile in clause (A) it doesn9t, si-?ly /ecause it does not have to" 3he ?ur?ose o2 clause (A) is to ena/le the state to -ake la;s, inter alia, ?rescri/ing -aDi-uli-its as to ?ro?erty that -ay /e o;ned, held or ?osseesssed" Since a

court cannot -ake such a la;, or any la;, the :uestion o2 ;hether the ;ord Bla;C in clause (A) includes %udicial ?ronounce-ents does not even arise and no aid can /e had 2ro- the use o2 the ;ord Bla;C in the 2irst clause to inter?ret the sa-e ;ord in the second clause" 3he conteDts o2 the t;o clauses are co-?letely di22erent and the ;ord Bla;C used in the 2irst clause has no /earing on the -eaning o2 the sa-e ;ord as used in the second clause"

3he ?ur?ose and intent o2 clause (*) is to ensure that the li-it on ceiling o2 land o;ned as on the co--encing day /y virtue o2 an eDisting la; (i"e the !egulations) is not violated" .t is this intent and ?ur?ose ;hich -ust /e read or considered in inter?reting this clause and it ;ould /e a strange conclusion indeed that ;hile the 1onstitution does not allo; the ?arlia-ent to -ake a la; 2or holding -ore ?ro?erty than ;as ?er-issi/le on the co--encing day, it allo;s a court to declare to the contrary" 3he learned %udge9s reasoning co-?letely negates the -eaning, ?ur?ose and intent o2 Article *57 and at least three other articles o2 the 1onstitution i"e Article *E (7) (2), Article A, and Article 5A" .t is su/-itted that this inter?retation o2 the 1onstitution ;here/y the A??ellate 1ourt assu-ed %urisdiction to

strike do;n the single -ost signi2icant re2or- in Pakistan9s history is ;holly incorrect"

Second, the learned %udge dra;s su??ort 2ro- t;o %udg-ents o2 this 1ourtH 6" # Ali9s case (P 8 AF,5 S1 5+=) and Hyesons Sugar Mills case (P 8 AF,, S1 7F,)" According to the learned %udge, these cases decide that the ;ord Bla;C used in the 1onstitution only includes B?ositiveC la; and not %udicial ?ronounce-ents" .t is su/-itted that the t;o cases decide a/solutely 'O3H.'G o2 this sort" 3he :uestion in /oth cases ;as ;hether the ter- Bla;C includes %udicial B"racticesC and 'O3 i2 it includes %udicial "rono!ncements" .t ;as in this conteDt that the 1ourts concluded that the ter- la; only includes ?ositive la;" .t is su/-itted that there ;as no occasion in these cases to discuss %udicial ?ronounce-ents /ecause a %udicial ?ronounce-ent is no -ore than a declaration as to ;hat the la; is" 3his ;as so ;ell understood as an esta/lished %uris?rudential ?rinci?le that it ;as co-?letely unnecessary 2or the honora/le %udges to even -ention, let alone discuss B%udicial ?ronounce-entsC" 3he learned %udge -ay not have 2allen into error i2 it had /een su/-itted to hi- that the B%udicial ?ronounce-entC that he ;as hi-sel2 called u?on to -ake in the

a??eal ;as itsel2 nothing -ore than a declaration as to ;hat B.sla-ic a;C ;as on the :uestion o2 land re2or-s"

3he learned %udge also holds that i2 the A??ellate 1ourt declares the !egulations and the Act unisla-ic it is not the sa-e thing as B2ra-ingC a la; and it is only the B2ra-ingC o2 a la; that is ?rohi/ited /y clause (*) o2 Article *57" .t is su/-itted that this conclusion is not /orne out o2 the teDt or ?ur?ose o2 the said constitutional ?rovision at all and it is reiterated that a B%udicial ?ronounce-entC is no -ore than a declaration as to ;hat the Bla;C is" .t is res?ect2ully su/-itted that the di22erence sought to /e esta/lished /y the learned %udge /et;een B2ra-ingC a la; and -aking a B%udicial ?ronounce-entC is illusory and %uris?rudentially incorrect in this conteDt" .t is 2urther su/-itted that had the 1onstitution -akers i-agined that a court -ight 2all into the error o2 inter?reting the ;ords B%udicial ?ronounce-entC in a ;ay that ;ould ena/le it to do ;hat the ?arlia-ent itsel2 ;as ?rohi/ited /y the 1onstitution 2ro- doing, and that such an inter?retation ;ould render at least t;o ?rovisions o2 the 1onstitution (and la;s 2ra-ed under their -andate) co-?letely nugatory, they -ight have taken the

trou/le

to

add

the

unnecessary

;ords

B%udicial

?ronounce-ents>declarationsC to Article *57"

.t is su/-itted that i2 the learned %udge9s reasoning is acce?ted it ;ould also i-?ly that the guarantee in Article 5 that the State shall not -ake a la; inconsistent ;ith 6unda-ental !ights also only a??lies to B?ositiveC la; and that a court -ay decide a case in a -anner that it violates a 6unda-ental !ight or renders a 6unda-ental !ight redundant or nugatory"

ii"

3he %urisdiction clai-ed /y the A??ellate 1ourt ;as /y virtue o2 1ha?ter 7)A, es?ecially its non o/stante clause, /ut it is su/-itted, that the introduction o2 that cha?ter does not, and cannot change the intent and ?ur?ose o2 the original 1onstitution ;hich ?rovided s?eci2ic ?rovisions -andating and ?rotecting land re2or-s"

1ha?ter 7)A and its non o/stante clause (in Article *+7A) cannot override other, original ?rovisions o2 the 1onstitution and ;here they con2lict ;ith the-, the original ?rovisions ;ill ?revail" 3he /est that the non o/stante clause o2 1ha?ter 7)A does is to ena/le the ?rovisions o2 that cha?ter to Btake e22ectC not;ithstanding the other ?rovisions o2 the 1onstitution relating to %udicature i"e all it does is to ?rovide 2or another court ;ith a very li-ited %urisdiction" .t does nothing else and does not, in any case, ?er-it the su/se:uently, ne;ly esta/lished court to a22ect an article o2 the 1onstitution in the eDercise o2 its li-ited %urisdiction" !e2erence -ay /e -ade to the Al Jehad case (P 8 AFF= S1 7*E) in ;hich a -a%ority o2 three %udges o2 the Su?re-e 1ourt took the vie; that ;here there is a contradiction /et;een t;o ?rovisions o2 the 1onstitution, one o2 the- /eing the original or ?ro?erly ?ro-ulgated ?rovision and the other /eing a ?rovision introduced /y a dictator (i"e via the 5th A-end-ent), the latter ;ould give ;ay to the 2or-er (?er A%-al Mian JH 6a$al .lahi 0han J and Man$oor Hussain Sial J concurring and no contra o/servation /y any other %udge)"

.n the Al Jehad case, the con2lict ;as /et;een Article *+F o2 the 1onstitution ;hich ?rovided that a su?erior court %udge -ay only /e re-oved /y the ?rocedure ?rovided /y that article itsel2 ;hile Article *+7 1 (5) ?rovided that a High 1ourt %udge ;ho did not acce?t a??oint-ent as a 6S1 %udge ;ould /e dee-ed to have retired" Article *+F had /een a ?art o2 the original 1onstitution ;hile *+7 1 ;as inserted /y General Iia" 3he Su?re-e 1ourt 2ound that the t;o articles ;ere inconsistent /ecause auto-atic retire-ent under *+7 1 violated the security o2 tenure granted /y *+F (,) ;hich states that a %udge -ay not /e re-oved eDce?t through the ?rocedure ?rovided in Article *+F" Mr Justice A%-al Mian (;hose %udg-ent ;as concurred to /y t;o other honoura/le %udges) s?eci2ically states that ;here one ?rovision had /een ?art o2 the original 1onstitution and the other the ;ork o2 a dictator, he ;ould discard the other;ise a??lica/le ?rinci?le that the latter)in)ti-e ?rovision (*+7)1) ;ould ?revail over the older (*+F), and it ;as held that the ?rovision contained in the original 1onstitution -ust ?revail over that introduced /y a dictator in the interest o2 %ustice and 2air ?lay"

6or the a/ove reasoning and on the /asis o2 Al Jehad it is su/-itted that the non o/stante clause o2 1ha?ter 7)A is o2 little conse:uence and ;here it clashes ;ith an BoriginalC ?rovision o2 the 1onstitution, the latter ;ould ?revail" 6urther, on the strength o2 the sa-e ?rinci?le, it is su/-itted that i2 a clause o2 the 1onstitution, introduced /y a dictator -ust give ;ay to an original ?rovision, then it need hardly /e added that eDercise o2 %urisdiction under such a clause cannot and -ust not /e ?er-itted to render original ?rovisions o2 the 1onstitution su?er2luous or nugatory, or even re-otely a22ect those ?rovisions or things done or la;s ?assed under their -andate" 3his ;ould /e truer 2or ?rovisions o2 the 1onstitution that ;ere enacted to ?rovide s?eci2ic -andates e"g Article *57, or ;hich con2er a 6unda-ental !ight e"g Article A, or those that create clear eDce?tions e"g Article *E (7) (2)"

i"

On su/)clause (2) o2 Article *E (7), ;hich eDcludes la;s -ade in ?ursuance o2 Article *57 2ro- the guarantees ?rovided /y its (Article *E9s) clauses (A) and (*) , the A??ellate 1ourt9s %udg-ent -aintains a /0/#$ s($e).e" .t does not discuss ho; that clause ;ould /e a22ected /y the %udge-ent given /y it i"e" it ;ould /e rendered redundant)))and ho; that conse:uence ;ould /e %usti2ied" 3his, des?ite the 2act that

the 6S1 had s?eci2ically relied u?on this ?rovision i"e su/)clause (2) o2 Article *E (7) ;hile co-ing to the conclusion that it did not have %urisdiction to eDa-ine la;s ;hich had /een -ade in ?ursuance o2 Article *57" .t is eDtre-ely sur?rising that there is no discussion o2 this ?rovision, in the A??ellate 1ourt9s %udg-ent, nor any criti:ue o2 the 6S19s reliance on this ?rovision ;hile declining %urisdiction"

.t is also note;orthy that none o2 the Honora/le Judges>Me-/ers o2 the A??ellate 1ourt eDa-ined the ?rea-/le o2 the and !e2or-s Act AF,, ;hich lays out the ?ur?oses o2 the Act ;hile s?eci2ically re2erring to Article *57" .t is su/-itted that the issues ;hich the Act ai-s to address are not %ust con2ined to clinching ?rivate ?ro?erty" 3hey have a higher ?ur?ose, a ?ur?ose ;hich takes its -andate 2roArticle *57 o2 the 1onstitution" 'ot one honoura/le Judge>Me-/er in the A??ellate 1ourt took note o2 this"

ii"

.n this ?etition this honoura/le 1ourt is /eing urged to reconsider the Ga$al/ash case on grounds that ;hile assu-ing %urisdiction, the A??ellate 1ourt -ade su/stantive inter?retations o2 several ?rovisions

o2 the 1onstitution and o-itted to consider several others@ i"e Article A,, *E (7) (2), *5, *57 and *=F" .t ;ould /e ano-alous i2 it ;ere held that the Su?re-e 1ourt did not have %urisdiction to reconsider these inter?retations in its general %urisdiction, original or a??ellate"

%" 3hat even on -erits, the A??ellate 1ourt9s %udg-ent ?rovides a-?le ground 2or reconsideration" .t -ay /e noted that Mr Justice Muha--ad A2$al Iullah, 1hair-an o2 the A??ellate 1ourt straight a;ay says that the 1ourt ;as inade:uately assisted and he has hesitated in calling the decision a 2inal one on the su/%ect" Jet, in a case o2 such huge i-?ortance, he chose to dis?ose o2 the -atter /y agreeing ;ith the vie;s o2 Me-/er, Maulana 3a:i 4s-ani, rather than call 2or 2urther assistance to ensure that the %udg-ent ;as /ased on su22icient scholarly in?ut re?resenting all schools o2 thought" .t is su/-itted that alternate ?oints o2 vie; on the :uestion o2 land re2or-s ;ere not duly considered /y the A??ellate 1ourt eDce?t to the eDtent o2 re2uting so-e o2 the ?oints that the 6S1 -ade the /ases o2 its %udg-ent"

3he Petitioners have anneDed ;ith this ?etition t;o 'otes>O?inions ?re?ared on the :uestions involved in this -atter ;hich esta/lish the ?er-issi/ility o2 and !e2or-s in .sla-" 3he 2irst 'ote>O?inion is

authored %ointly /y Mr Sa%id Ha-eed, Head o2 8e?art-ent o2 the 8e?art-ent o2 .sla-ic < !eligious Studies, 4niversity o2 1entral Pun%a/, ahore and 8r 0halid Iaheer, 8ean, 6aculty o2 Arts and Social Sciences, at the sa-e 4niversity ;hile the Second 'ote>O?inion is authored /y Mr Justice (!etd) Syed A2$al Haider, a Senior Advocate o2 the Su?re-e 1ourt o2 Pakistan, a 2or-er %udge o2 the 6ederal Shariat 1ourt and a 2or-er Me-/er o2 the 1ouncil o2 .sla-ic .deology"

.t is su/-itted that the contents o2 the note o2 Mr Justice Muha--ad A2$al Iullah ?rovide su22icient reason 2or a reconsideration o2 the case even on -erits" .t -ay 2urther /e noted that this %udg-ent re:uires reconsideration on -erits also 2or the reason that at /est it a??ears to /e a BreluctantC %udg-ent in that out o2 a total o2 2ive a??eal %udges, one honoura/le %udge dis-issed the a??eals, one honoura/le %udge eD?ressed reservations on the assistance ?rovided and the 2inality o2 the decision /eing -ade and one honoura/le %udge only declared a s-all nu-/er o2 the ?rovisions unisla-ic"

(3he 'otes>O?inions re2erred in the ?ara a/ove are 2iled as AnneDes 1)A and 1)*) k" 3hat the %udg-ent o2 Me-/er, Maulana 3a:i 4s-ani, see-s, in all as?ects to /e ?redicated on the assu-?tion that the -atter o2 land re2or-s is /eing considered ;ith re2erence to a Btruly .sla-ic stateC, a state ;hich has s?eci2ic duties o2 ;el2are to;ards its su/%ects and 2ul2ills those duties" Also, his %udg-ent considers the :uestion o2 a state redistri/uting land in the a/stract and not s?eci2ically ;here the syste- o2 land o;ning as it eDists in Pakistan has itsel2 /eco-e an evil that su/%ugates ?eo?le and ?revents the- 2ro- even /eing a/le to achieve a -ini-ally res?ecta/le living standard, let alone ;here it ?revents the- 2ro- 2reely choosing their governing re?resentatives" 3hese su/-issions -ay /e read in con%unction ;ith the note anneDed here;ith and re2erred to in the ?receding ?ara"

l"

3hat the %udg-ent did not also consider that in -ost cases the huge o;nershi?s o2 the /ig 2eudal and lando;ners are illegiti-ate to /egin ;ith and that they ca-e a/out as largesse eDtended to the- /y the #ritish colonists 2or services rendered)))services that o2ten co-?rised o2 cons?iring ;ith the #ritish against the local ?o?ulace" Another ;ay in

;hich the colonists re;arded these 2eudal lords ;as /y eDe-?ting their (agricultural) inco-e 2ro- taD as ?rovided 2or in the Govern-ent o2 .ndia Act AF75" 3his eDe-?tion survives to date and the ?arasitic /ene2iciaries o2 it ensureK;ith their ?o;er and in2luence))))that it is not taken a;ay 2ro- the-" As su/-itted a/ove, the %udg-ent o2 the A??ellate 1ourt looked at the issue in the a/stract and did not take into account ho; this syste- has /eco-e a cancer 2or this country"

-" 3hat there is no /ar on this 1ourt to eDa-ine i2 %urisdiction ;as ?ro?erly assu-ed /y the 6S1 or the A??ellate 1ourt so as to see ;hether in doing so and in rendering their %udg-ents on -erits the 6S1 or the A??ellate 1ourt have -ade inter?retations and dra;n conclusions that a22ect ?rovisions o2 the 1onstitution such as Article A,, Article *E, Article 5A and Article *57" .n this regard it is su/-itted that the /ar o2 Article *+7) G is only in res?ect to -atters that #all within the j!ris$iction o2 the 6S1 (and the A??ellate 1ourt) i"e no other court is to have %urisdiction in res?ect to a -atter in regard to ;hich the 6S1 or the A??ellate 1ourt do have %urisdiction" 3his -erely -eans that only the 6S1 -ay eDa-ine a la; on the touchstone o2 .sla-" Ho;ever, ;here in assu-ing %urisdiction, or in deciding a -atter on -erits, the 6S1 or the A??ellate 1ourt a22ect)))

directly or indirectly))) even a single ?rovision o2 the 1onstitution, they ;ould have transgressed their %urisdiction and the Su?re-e 1ourt ;ould have %urisdiction to reconsider such decisions in its original as ;ell as a??ellate ?o;ers" 3o say the contrary ;ould -ean that an inter?retation o2 a 1onstitutional ?rovision -ade /y the Shariat A??ellate #ench /ars the Su?re-e 1ourt 2ro- reconsidering the sa-e even i2 it /e sitting as a 2ull court o2 seventeen %udges"

.t is 2urther su/-itted that such decisions o2 the 6S1 or the A??ellate 1ourt that a22ect ?rovisions o2 the 1onstitution ;ould also have /een challengea/le under Article AFF /ut 2or the 2act that Article *+7GG -akes the decisions o2 the 6S1 /inding on the high courts"

n" 3hat the Petitioners seek leave to urge 2urther grounds at the ti-e o2 hearing"

.n vie; o2 the a/ove su/-issions it is res?ect2ully ?rayed that this honoura/le 1ourt /e ?leased to@

a" Order that P 8 AFF+ S1 FF ;as decided on an erroneous assu-?tion o2 %urisdiction and set aside the said %udg-ent"

/" Order, in conse:uence o2 BaC that the !es?ondent 'o@ A take a??ro?riate ste?s to i-?le-ent and co-?lete the land re2or-s /rought a/out /y the !egulations and the Act"

c" Allo; other relie2s that it dee-s 2it even though not ?rayed 2or"

8ra;n #y@ #ilal Hasan Minto Advocate Su?re-e 1ourt

Settled #y@ 6iled #y@ A/id Hassan Minto Senior Advocate Su?re-e 1ourt