IN THE SUPREME COURT OF PAKISTAN
Original Jurisdiction

PRESENT:

Mr. Justice Ajmal Mian C. J.
Mr. Justice Saiduzzaman Siddiqui
Mr. Justice Irshad Hasan Khan
Mr. Justice Raja Afrasiab Khan
Mr. Justice Muhammad Bashir Jehangiri
Mr. Justice Nasir Aslam Zahid
Mr. Justice Munawar Ahmed Mirza
Mr. Justice Mamoon Kazi
Mr. Justice Abdur Rehman Khan

CONSTITUTIONAL PETITION NOS. 37, 38, 42 & 43 OF 1998 AND NO. 4 OF 1999 ALONG WITH CIVIL REVIEW PETITIONS NOS. 1 TO 5 OF 1999

Constitutional Petition No. 37/98

Sh. Liaquat Hussain …Petitioner

Versus

The Federation of Pakistan
through Ministry of Law,
Justice and Parliamentary
Affairs, Islamabad …Respondent

Constitutional Petition No. 38/98

Syed Iqbal Haider …Petitioner

Versus

The Federation of Pakistan
through Ministry of Law,
Justice and Parliamentary
Affairs, Islamabad …Respondent

Constitutional Petition No. 42/98

MQM through its Deputy Convenor Senator Aftab Ahmed Sheikh …Petitioner

Versus

The Federation of Pakistan
through Secretary Cabinet,
Pakistan Secretariat, Islamabad …Respondent

Constitutional Petition No. 43/98

Shahid Qureshi …Petitioner

Versus

1- The President of Pakistan, Islamabad

2- The Federation of Pakistan
through Secretary Law Division,
Islamabad …Respondents

Constitutional Petition No 4 of 1999

Nisar Khurho …Petitioner

Versus

1- The Federation of Pakistan
through Ministry of Law
Justice and Parliamentary
Affairs, Islamabad

2- The Governor, Sindh, Karachi

3- The Province of Sindh through
Chief Secretary, Karachi …Respondents

Civil Review Petitions Nos. 1 to 5 in Const. Petitions Nos 37, 38, 42, 43/98 and 4/99

The Federation of Pakistan, etc. …Petitioner

Versus

1- Sh. Liaquat Hussain
2- Syed Iqbal Haider
3- M. Q. M.
4- Shahid Orakzai.
5- Nisar Khurho. …Respondents

....................................

ORDER

After hearing the learned counsel for the petitioners, the petitioners in person, the learned Attorney General for Pakistan and the learned Advocate-General Sindh, for the reasons to be recorded later, we are the view that Ordinance No. XII of 1998 as amended up-to-date in so far as it allows the establishment of Military Courts for trial of civilians charged with the offences mentioned in section 6 and the Schedule to the above Ordinance are declared unconstitutional, without lawful authority and of no legal effect and that the cases in which sentences have already been awarded but the same have not yet been executed shall stand set aside and the cases stand transferred to the Anti-Terrorist Courts already in existence or which may hereinafter be created in terms of the guidelines provided hereunder for disposal in accordance with the law. The evidence already recorded in the above cases and the pending cases shall be read as evidence in the cases provided that it shall not effect any of the powers of the Presiding Officer in this regard as is available under the law. The above declaration will not affect the sentences and punishments already awarded and executed and the cases will be treated as past and closed transactions.

2. However, we are not oblivious of the fact that terrorism in Karachi and in other parts of Pakistan has not only taken toll of thousands of innocent lives but has also affected the economy of the entire country and it is a matter of paramount importance that this menace is eliminated effectively in the shortest possible time, for which a solution be found within framework of the Constitution.

3. Since we are seized of these petitions in exercise of our constitutional jurisdiction under Article 184(3) of the Constitution, we lay down the following guidelines which may contribute towards the achievement of the above objective:-

1. Cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti Terrorism Act. 1997 (hereinafter referred to as A.T.A) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others versus Federation of Pakistan (PLD 1998 SC 1445);
   
2. One case be assigned at a time to Special Court and till judgment is announced in such case, no other case be entrusted to it;
   
3. The concerned Special Court should proceed with the case entrusted to it on day-to-day basis and pronounce judgment within a period of 7 days as already provided in A.T.A or as may be provided in any other law;
   
4. Challan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court;
   
5. An appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal;
   
6. Any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable;
   
7. The Chief Justice of the High Court concerned shall nominate one or more Judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines;
   
8. That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure that of any petition for leave/ or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court;
   
9. That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the A.T.A., the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, advocates and witnessed appearing the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.

Subject: Constitution Petitions Nos. 37-38/98 42-43/98 and 4/99 along with C.R.P. No. 1 to 5 of 1999:
(Sh. Liaquat Hussain etc. Vs. The Federation of Pakistan and others)

In pursuance of the guidelines laid down in the short order of even date passed in the above Constitution Petitions, I nominate Mr. Justice Nasir Aslam Zahid and Mr. Justice Munawar Ahmed Mirza to monitor the implementation of the guidelines laid down in the aforesaid short order.

Chief Justice
17.2.1999