The Court of Chief Justice Rashid;
A Study into the Early Schism within the Pakistan Courts
By
Usman Khan Yousafzai
A Study into the Early Schism within the Pakistan Courts
By
Usman Khan Yousafzai
INTRODUCTION
The judicial history of Pakistan is of a mixed legacy with instances where the institution completely surrendered itself to the executive, becoming mere rubberstamps of the growing power within the center of the country whereas, in other instances, it rebelled against said powers and enjoyed a level independence not afforded to other institutions within the country. It is safe to say that the judicature has enjoyed its own evolution within the country and it is the examination of this beginning that is the purpose of this study to understand how the Courts of Pakistan evolved within the early years of Pakistan. The Judiciary of Pakistan derives its history from British India where the original organs of the institutions were established in the cities that did not become part of Pakistan forcing the judiciary to formulate a separate path whilst being anchored to the institution and tradition established for the whole of India and this was especially complicated for the Judiciary when it was saddled with the responsibility of introducing an Islamic Legal System in the course of judicial dispensation when its tradition and history gave it neither training nor experience to do so. The judiciary was touted by the British as its foremost institution which they could arguably boast with some justification that the judiciary was the prime organ that introduced the rule of law. The argument was that it was the judiciary that became a model for enforcing law and order in a vast land that suffered from anarchy and chaos on behalf of the decay of the Mughal Empire and the downfall of the Maratha. Similarly, the executive and the people of Pakistan looked upon the Judiciary as the model institution to introduce the rule of the Islamic Legal system and it was the most difficult balancing act that the institution was called upon to perform. Whilst the institution did succeed to an extent in creating this balance, its decisions in the early days created a chasm of mistrust within the Judicature and the people of Pakistan that has only compounded in the 21st Century.
THE JUDICATURE OF EAST PAKISTAN
In 1947 British India was divided into Pakistan and India and a difficult task for this division was the division of the intricate legal record within the Judicature. The first issue was that East Pakistan, partitioned from Bengal had no seat in the High Court yet the newly formed portion of the country had the highest number of the population. Calcutta on the other hand was the oldest High Court of the Indian Subcontinent and had jurisdiction all over the province of Bengal. That meant several cases concerning the region and individuals of East Pakistan were still being contested in the Calcutta High Court.
It was clear that East Pakistan needed their own High Court and this was done in 1947 when the High Courts (Bengal) Order 1947 was promulgated on 13th September 1947 under East Pakistan established a High court, known as the High Court of East Bengal with its seat at Dhaka.[1] Any Judge of the Calcutta High Court could opt to become the Judge of East Bengal with the same rules and orders to apply as that of the Calcutta High Court yet the Calcutta High Court retained jurisdiction over matters pending before the appointed date. Meaning that if there were cases filed in the Calcutta High Court before the establishment of the High Court of East Bengal, then those cases would not be shifted and could hear appeals and any review of any order or judgment passed by the Calcutta High Court could only be determined by it and not by the High Court of East Bengal and all orders, judgments, decrees and sentences passed by Calcutta High Court after the formation of High Court of East Bengal, for which jurisdiction vested in it, would be treated as passed by High Court of East Bengal and be executable as such. This was understandable since the Calcutta High Court was the oldest in British India and separation of such a scale was no easy administrative task. It is a testament to the effort performed by the hard-working judges and record keepers of Calcutta High Court for this endeavour. In 1947 High Court of Calcutta Order was promulgated on 13th September 1947 and under this order the Calcutta High Court would continue to exist as is for the Province of West Bengal[2] with the Chief Justice and Judges as appointed would continue to hold office save for the provisions of High Court Bengal Order. Sir Arthur Trevor Harries was the Chief Justice of Calcutta High Court since 11th November 1946 with 22 puisine judges in his Court of whom 9 were Christians, 8 were Hindus, 4 were Muslims and one was Parsi. He would remain Chief Justice till his retirement on 13th June 1952. Nurul Qazim Khundkar was the second most senior Judge of the Calcutta High Court along with three Muslim Judges Abu Saleh Muhammad, A.S.M. Akram and Amiruddin Ahmed who were No. 10, 19 and 20 in the Seniority List. This is how nascent the East Pakistan Judicature was. They were four individuals with one added later on from the Madras High Court, Justice Shahabuddin, who had opted for Pakistan. Although he wanted to serve in West Pakistan but was appointed in East Pakistan.[3] A Christian Judge, Thomas Hobart Ellis also opted for East Bengal and was no. 17 in the list.
With the Nascent High Court set up in Dhaka, Justice Nurul would become the first Chief Justice however sadly he would pass away from Pnumonia which he caught at Calcutta Railway Station whilst waiting for a train to Dhaka. He was unable to take proper charge in the office and after his passing Justice A.S.M Akram would take over. His stay would not be long as he would be appointed as a Judge of the Federal Court when the said court would be formed.
EARLY JUDICATURE OF PAKISTAN
As we discussed the formation of the courts of East Pakistan in the introduction, for the sake of better understanding it is imperative that the reader is also made cognizant of the early judicial structure of West Pakistan. Partition had a massive impact on the judicial structure of British India since it was home to a complex judicial structure with nearly a century of history and this needed to be partitioned along with new courts needed to be established and constitutions needed to be framed. The province of Punjab was partitioned and the Pakistan side of Punjab was called West Punjab. The High Court seat for United Punjab was in Lahore as the Lahore High Court. The High Courts (Punjab) Order 1947 was promulgated on 13th September 1947 for East Punjab and any existing High Court Judge could opt for the High Court of East Punjab however in doing so, they would cease to be the Judge of West Punjab. The High Court of East Punjab would extend its jurisdiction to East Punjab and Delhi. The Lahore High Court would remain unchanged and would continue to carry on its business and all its rules and orders of practice would remain the same as before the Partition until modified. The High Court of West Punjab became the successor court to the Lahore High Court of United Punjab as it was established on 21st March 1919. At the time of Independence, the composition of the Lahore High Court was that it was headed by Chief Justice Mian Abdul Rashid. There were ten permanent Judges of which 2 were Muslim, five were Hindu, two were Christians and one was Sikh, three additional judges and two temporary judges of whom three were Muslims and two were Christians. The Chief Justice, along with five Muslim Judges, Justice Abdur Rehman, Justice Muhammad Munir, Justice Muhammad Sharif, Justice Atta Muhammad and Justice S.A Rehman opted for Pakistan. They were joined by one single Christian Judge whose name was Justice A.R Cornelius. These men would shape the very future of the Judiciary in Pakistan.
Going South from West Punjab, we came to Sindh which was headed by the Sindh Chief Court whose nascent nature was second only to the province itself. Sindh had been part of the Bombay Presidency and the Bombay High Court had jurisdiction over the region with a Judicial commissioner’s court established in Karachi in 1931. With the Government of India Act 1935 in place, Sindh was separated from Bombay and in 1940 the Judicial Court was abolished with the Chief Court of Sindh in power. It was headed by Godfrey Davis as its Chief Judge with six Puisine judges. Davis left for Britain with the English and he was succeeded by Hatim Badruddin Tyabji.[4] No Judge opted for India and thus remained as part of Sindh. Among them were two Englishmen named Dennis O’Sullivan and George Constantine. The other judges were T.V Thadani, Hassanali G. Agha, and M.R. Mehar. Hardworking men who served their province and did their seats justice as they would heed the policies of Justice Rashid to protect the citizenry against the cruel writ of the Central State.
The situation at Peshawar was different. Peshawar was the city of N.W.F.P. which was established on 20th December 1900 and on 9th November 1901, the province got one Judicial Commissioner. The N.-W.F.P. Law and Justice Regulation No. VII of 1901 was enacted by the Governor-General-in-Council in order to establish judicial institutions. The Regulation repealed the Punjab Courts Act, of 1884. Parts II and III of the Regulation deal with criminal justice, police and civil justice respectively; while part IV provides in detail the constitution and powers of courts. Section 2 (1) (a) read with section 42 of the said Regulation defined the duties and responsibilities of the Judicial Commissioner who was stated to be the highest civil and criminal court of appeal or revision in the province. The Judicial Commissioner was also entrusted with the duties of general superintendence and control of all other courts, which were made subordinate to his office. He was to appoint the Registrar and make rules consistent with the Regulation and any other enactment for the time being in force. Pakistan continued with this situation at the time of Partition wherein the Judicial Commissioners Court at Peshawar had two Judicial Commissioners namely Muhammad Ibrahim Khan and Malik Khuda Bakhsh. Whilst the legal fraternity of the province tried their utmost best to argue for a Chief Court or a High Court to be established in Peshawar, this struggle met a wall when in 1955, Pakistan enacted the One Unit Policy which enjoined all of West Pakistan as a single Unit with all Chief Courts and Commissioner Courts abolished with a single High Court of West Pakistan in its stead whose principle seat was in Lahore. It was not until 1970, when One Unit was abolished and the province restored that the Peshawar High Court was established with Chief Justice Bashir Ud Din Ahmed serving as its first Chief Justice.
As for Baluchistan, no such province existed at the time of Independence as Khan of Kalat was a separate entity to the Chief Commissioners Province which had a Judicial Commissioners Court at Quetta composed of two individuals named A.R. Khan and Bacon. The province would witness little evolution within its Judicature even after the incorporation of Kalat, Makran, and Las Bela. The regions would eventually be incorporated into the One Unit, similar to Peshawar and after the abolishing of the One Unit, the province would still not get a High Court but be lumped with the Sindh High Court which would continue till 1976 when it would finally get a separate High Court with Justice Khuda Baksh Marri as its Chief Justice. His initial tenure would last nearly 6 months and would retire a few days after Martial Law and take the position as Governor of Baluchistan for a year after which he would once again take the mantle of Chief Justice and the Baluchistan High Court under his guidance would show unprecedented courage against the Martial Law Authorities from 1978 till 1981 with the case of Hamid Baloch as its Highlight.
THE FEDERAL COURT OF JUSTICE RASHID
Now the Government of India Act 1935 had established the Federal Court of India which held appellate jurisdiction over all the High Courts in India. This helped streamline the Judicial process in India since prior to the Act, any party aggrieved by the order of the High Court had to file an appeal before the Judicial Committee of the Privy Council in London which was an expensive endeavor even for the more affluent and hampered the legal evolution of the Judicial Structure. The seat of this Federal Court for British India was in Delhi which meant that at the time of Partition, there was no Federal Court in the territories of Pakistan. Therefore the Governor General and founder of the country, Muhammad Ali Jinnah, promulgated the Federal Court of Pakistan Order 1948 on 23rd February 1948 however it actually came to be established on May 1949 but had established effect from 15th August 1947.[5] The Chief Justice of the Lahore High Court, Chief Justice Abdul Rashid was elevated as the Chief Justice of the Federal Court with Justice Muhammad Munir taking his place as Chief Justice Lahore High Court. The newly established court was housed in the borrowed wing of the building of the Lahore High Court in Lahore and two puisine judges were appointed to the Federal Court, Justice Abdur Rehman and Justice A.S.M Akram. The time of Justice Rashid had begun and we would witness, within his reign what an amazing judge he was as he understood that the country was in a volatile state with a power vacuum and this vacuum was sure to be filled by characters who would abuse state power for vested interests. His philosophy saw the judiciary separate from the Executive as a shield for the people to defend against the excesses of an authoritative organ of the state. He envisioned a Judiciary where the people would feel that their Fundamental Rights are protected and this umbrella of protection would help provide a nascent people truly become independent rather than serving another set of masters. He recommended the same for his fellow judges as well and we can see this not just from his judgments but also in his speeches such as his retirement reference as Chief Justice of Lahore High Court where he stated,
“Judicial Officers in general and judges of the High Court in particular have often to discharge the gravest ad most responsible functions. It is their duty to hold scales of justice firmly even between the executive and the subject, and between citizen and citizen. They have to safeguard the liberty and freedom of the masses. In carrying out their functions they might come into conflict with the Executive, or powerful business or political interests. The judges may incur disfavor, or even resentment. Efforts may even be made to terrorize them. All these disadvantages must be suffered in silence by the judges, and they must continue to administer justice with perfect impartiality. The independence, integrity and impartiality of the Judiciary are their greatest assets and these assets must be preserved, however great the sacrifice. If a judge allows his judgment to be influenced by extraneous considerations, he is not fit to hold his post. No judge can be allowed to advance the plea that his future career would have been wrecked or that he would have become highly unpopular, had he decided a case in a particular manner. The Quranic concept of Adl is that a judicial officer must deal out even handed justice between the disputants even though the King may be one of the parties and a beggar the other.”[6]
These were wise words of guidance delivered to the Judicature. Justice Rashid was a man of integrity and courage and under his guidance, the people had great faith in the judicature. He administered the oath of office to Quaid-e-Azam on 11th August. His conceptual role for the Judicature within the state of Pakistan would be abandoned by his successors as the majority of them would repeatedly surrender to the guns of the military and the authoritative will of the executive. The Judicature became the exact opposite of what he had envisioned it to become.
Justice Rashid envisioned an independent Judicature, separate from any foreign influence, a sentiment that was shared by many of his peers. He repeatedly called for the abolition of the jurisdiction of the Privy Council and this was made clear in his speech,
“An autonomous judiciary is the essence of independence. Now that Pakistan is an independent sovereign state, it is in the fitness of things that all appeals that are present entertained by the Privy Council should be transferred to the Federal Court of Pakistan. I hope the necessary legislation for this purpose will be undertaken by the Constituent Assembly at an early date. The Dominion of India abolished Privy Council appeals as long as February 1948.”[7]
This plea would be answered as the Federal Court Enlargement of Jurisdiction Act 1949 was promulgated on 19th January 1950 and came into force on 1st February 1950. All orders challenged before the Judicial Committee of the Privy Council in appeal or petition for leave to appeal stood transferred to the Federal Court provided that the record of the case had not been dispatched earlier by the High Court concerned to the Privy Council or that the Privy Council had already granted leave to appeal.[8]
It would further be expanded with the passing of the Privy Council Abolition of Jurisdiction Act 1950 which was passed on 20th April 1950 and came into effect on 1st May 1950 the jurisdiction of the Privy Council to hear appeals would cease and the jurisdiction would now lie before the Federal Court and all pending appeals should be transferred from the Privy Council to the Federal Court. The jurisdiction of the Privy Council was saved in those appeals or petitions in which the Privy Council had delivered judgments before the appointed date. With this, the Judiciary of Pakistan became truly independent.
The seat of the Federal Court was Lahore as a temporary venue and the reasoning provided by Justice Rashid made sense. As I highlighted before the history of the Judicial formations in Pakistan is very rocky at best with Lahore High Court being the only Court with a vast Judicial history and infrastructure that it had inherited. Other regions of Pakistan had either nascent courts or improper judicial structure and this is better worded in his own words.
“It is true that Lahore is centrally situated and is comparatively easy of access to litigants from all parts of Western Pakistan. Lahore is also the seat of the senior most High Court in Pakistan and this court is the only court that possess an up-to-date and well-stocked library. I have always been of the opinion that the level of judgments of Court of Law is only a little higher than the level of arguments addressed to the Court. If the arguments are poor and slipshod, the judgment is not likely to be of a very high order. The quality of the arguments addressed to the Court in turn depends on the question whether the Bar has access to an up-to-date and extensive Library. The Federal Court will have to deal with complicated questions of constitutional and general law. A good library is, therefore, an essential requisite accommodation for the Federal Court. These considerations were placed by me before some of the members of the Central Cabinet when I was at Karachi in the months of November and December 1948.”[9]
Whilst his reasoning was sound, the issue was that there were two Pakistans. East and West Pakistan, which were separated by thousands of miles. For an individual to file an appeal from East Pakistan to the Federal Court in West Pakistan was no different than filing it before the Privy Council in London. East Pakistan would not witness an Appellate Court to the High Court till 1972 after its independence. In a way, the Judicial Appellate structure in East Pakistan had regressed to the time before the Government of India Act 1935. This legal deficiency was neither corrected nor answered by the Judiciary or the State and one is left to wonder what would have happened if the Federal Court had a presence in East Pakistan and had been able to redress legal grievances on the ground even perhaps going as far as to stand against excessive abuse of state authority which was witnessed in East Pakistan on multiple occasions. Such short-sightedness played a role in the disaster of 1971.
COMPOSITION OF THE FEDERAL AND HIGH COURT UNDER JUSTICE RASHID
The Federal Court of Pakistan made its rules called the Federal Court Rules 1950 which were notified on 20th March 1950 and these were framed similarly to the Rules of the Federal Court of India. The Federal Court was subsequently expanded to include Justice Shahabuddin from the High Court of East Bengal and Muhammad Sharif from the Lahore High Court. During his period, Justice Abdur Rehman retired and a vacancy came to be in the Federal Court of Pakistan in 1951. This vacancy should have been filled by the Chief Justice of the Lahore High Court and this is what Justice Rashid wanted as well when he was called into the chambers of Justice Rashid for this appointment, Justice Munir refused citing that he still had unfinished work in the Lahore High Court. Justice Rashid did not press Justice Munir and asked Justice Cornelius to fill the role.[10] In view of Justice Munir, the Lahore High Court was a more powerful office as compared to being a judge of the Federal Court and since the power center of West Pakistan was in Lahore, it was clear that Justice Munir wanted to leave his mark. During this period, Justice Munir started to shift ideologically from the policies of Justice Rashid. Justice Munir Rashid felt that the judiciary needed to protect the people from the excesses of the executive especially when the country was in its nascent stage and the executive slowly forming and flexing its muscles. Justice Rashid felt that the nature authoritarian nature of the executive office needed to be kept on a leash by the Courts and we will see this in more detail as we peruse the judgments of the courts in the time of Justice Rashid. His vision was that the Courts would be the shield that would protect the people against the sword of the government. Justice Munir on the other hand felt that the Judicature needed to work with the Executive for stability even if it meant that the Executive could flex some of its muscles. The Courts can help the executive in maintaining stability and thus make sure that no undesirable elements can take advantage of the fissures in the country and destabilize it. As we know this was the blueprint of what would go on to be the Establishment of Pakistan. This schism of thought would become clearer as we look into the judgments that were passed by the courts during the aforementioned period.
The appointment also created a bad precedent as all the Chief Justices in the history of Pakistan have looked to retain their position rather than be elevated to Superior Courts and this has allowed junior judges to be appointed often under the recommendation of the Establishment. Justice Munir would stay as the Chief Justice of the High Court till the retirement of Chief Justice Rashid in 1954.
The Higher Courts were largely influenced by the philosophy of Justice Rashid in their earlier days as they looked to pass pro-people judgments and protected them from the writ of the executive and while other courts continued to follow this philosophy, by 1953, the Lahore High Court, under Justice Munir had deviated from the policy of Justice Rashid and was actively giving pro-executive judgments which even went as far as to impact the Fundamental Rights of the people. The judges under Justice Munir were M.R Kayani, B.Z. Kaikaus, Shabbir Ahmed, Akhlaque Husain, Abdul Aziz Khan, C.M Sharif, Yaqub Ali with S.A Rahman succeeding Munir as Chief Justice in 1954. The High Court of East Bengal was headed by A.S.M Akram until the establishment of the Federal Court of Pakistan in 1949. He was succeeded by Shahabuddin and when he was elevated as the Judge of the Federal Court, he was succeeded by Thomas Hobart Ellis as the Chief Justice of the High Court of East Bengal. The judges of the High Court were Ahmed, Guha, Afzal, Ispahani, Chaudhary, Ibrahim and Badiuzzaman. In the Sindh Chief Court, Chief Judge Tyabji retired in 1953 and was succeeded by Hassanalli Agha, and when he retired, he was succeeded by Constantine as the Chief Judge of the Sindh Chief Court. Including these men, the Sindh Chief Court expanded to include Villani, Bachal, Bakhsh, Inamullah and Lari. The Judicial Commissioners Court of Peshawar included Muhammad Ibrahim, Muhammad Shafi and Habibullah Khan whereas the Judicial Commissioners Court of Quetta was composed of R.K.M. Saker and Ghazanfer Hussain.
The judges of these courts were men of great repute and knowledge and the Courts of Pakistan had the confidence of the people. Even those of subordinate judiciary were men of good repute and the common man had faith that if he knocked on the doors of Justice, he would receive it. This absolute faith would eventually be chipped away as the Judicature of Pakistan would fall astray to the path of the Establishment. Let us delve deeper into the Courts of Rashid with some leading cases of the time to understand the functioning of the Court as well as the Schism that was to follow.
LEADING CASES FROM 1949 TO 1954
Now Justice Rashid during his tenure, kept a distance from the Government and would often advise his brother judges to do the same. He discouraged the mingling of the Judges with men of the executive. He stated that governments, federal as well as provincial, were the most frequent litigants and would be one party or the other and if judges attended events or were seen mingling with the Government, then it would create an impression to the Public that the courts would favour the government. He also emphasized that repeated mingling would create comraderies that may cloud the judgment of the judge and make him a biased party. The judgments during his period were well written and as mentioned before, the courts were well cognizant of the rights of the common citizen, especially during the early days when the executive, after the passing of the founding father, started to hammer down on the rights of the people through authoritative and executive measures. The first case we will look into is the famous case of “Naya Zamana” the news outlet.
PLD 1949 212 Lahore
The title of the case was Naya Zamana represented through Abdullah Malik versus the Crown which was heard by the Full Bench of the Lahore High Court before Justice Cornelius, Muhammad Jan and Khurshid Zaman. The facts of the case were that an appeal was filed by the newspaper which was penalized with a heavy security deposit under the draconian Press (Emergency Powers) Act 1931 due to an article critical of the government was published especially criticizing the Punjab Public Safety Act as a “Lawless Law” and an instrument of dictatorship. The court accepted the petition and held that there is nothing in the News Article to bring forth contempt and held
“….term “Lawless Law” in political literature of this type is applied usually to unpopular measures which act in restraint of the ordinary liberties of the people, and confer discretion upon authorities, at will, and, acting purely upon their own estimate of the necessities, to interfere with individual and popular liberties…… To criticize a law is not the same thing as bringing into hatred or contempt the king or the government…… Mere dislike or disapproval is not sufficient to constitute hatred or contempt.”
This was not the only case where civil liberties were protected by the early Courts of Pakistan.
PLD 1949 LAHORE 282
The case was heard before Full Bench Justice Muhammad Sharif, Justice Cornelius and Justice Muhammad Jan and the case concerned the news outlet “The Daily Ehsan” whereas said news outlet published an article that discussed the processions of Muharram under the light of reason and logic and questioning the religious concept of divine right to rule under the philosophy of “Divine Imamat”. The courts held that when the article is read as a whole, there is nothing in it that could be deemed to be in contravention of the articles of the Press Act and highlighted that merely taking parts of an article absent context cannot be utilized as a medium for penalty whereas the second part of the Article which concerned the infidelity of the people of Kufa then it was part of Islamic History and is well referenced in the Article and the line in question, “Our Shias Withdrew from me the hand of their support” is referenced to be taken from Jala-ul-ouyun P.g 452 and the term does not bring into hatred the whole Shia Sect but clearly those who lived at that time, invited him under Imamat and then betrayed him… The Court held that
“..truth might be unpalatable but has to be told and only limitation placed is that it should be told in a manner free from malice or language free from abuse. There writer of the article was clearly discussing the theory of the “Divine Imamat” and in illustration of the pernicious results it might produce, and as for the poem, “Aya Apna Raj” which said that the declaration of independence was signalized by mass scale slaughter and rapine was a cry from an agonized heart against the inequity of his fellow-beings. The Government of the day did not figure in the picture.”
The court held that none of the articles were in contravention of the provisions of the Press Act 1931. The Judgment highlighted once again that freedom of speech will not be suppressed especially when it comes to historical facts or the retelling of massacres as failure of state institutions.
These civil liberties were once again reiterated in the case of “Inqilab-i-Chin”
PLD 1949 LAHORE 511
A Special Bench under Justice Cornelius, Justice Muhammad Jan and Justice Khurshid in the case titled Sher Muhammad vs The Crown heard the case relating to the holding and publishing of the book Inqilab-i-Chin to be in contravention of the Press Act 1931. The book eulogized the Chinese Revolution and called for the eventual end of foreign-funded forces similar to how the Chinese had done for their nation. The book focuses largely on the Chinese Revolution and highlights similarities to the conditions before the Revolution, Pakistan is also bowing to foreign interests and is embroiled in conflicts by the will of foreign hands. The court held that there is nothing within the material to suggest that it is an attack on the Government or the Army of Pakistan.
“The referencing in Passages B and C with the Pakistan Army is by way of comparison and simile. The writer differentiated that the army of the communist party was composed of labourers and peasants whereas the army of Chang-Kai-Shek was the army of the feudal landlords and this using this difference to highlight the behavior of our own army, namely those posted at the Frontier, it treats the cultivators of those parts oppressively that its soldiers presumably under orders to fire at labourers and refugees and at the peasants of East Bengal and act to defend the existing landlord system moreover, the soldiers are accustomed to taking foodstuffs and other necessary articles from the villages they visit by force and mostly free of cost. This is contrasted with the behaviour of the Communist Army which is said to be wholly beneficent towards the common people. Again, it is said that the Communist Army provides its own food and its expense is very slight whereas the Army of Pakistan consumes sixty per cent of the budget of Pakistan. The latter statement is merely factual the supporting statement that it is equivalent to a man earning one hundred rupees and paying sixty rupees to his chawkidar does not by itself render the statement of fact in any way tendentious, for occasions frequently arise in the history of a country when self‑defence becomes the paramount need and the expenditure on defence consequently assumes very large proportions. However that may be, the question is whether the statements, indirect though they may be, which exhibit the Army of Pakistan, in its contact with the common people, in an unfavourable light, are intended or calculated to bring their Army' into hatred or contempt…….”
The Court declared the passages as not against the sections of the Press Act and declared that civil liberties cannot be curtailed and even this comparison does not bring into the Army contempt or hatred and further stated
“…..These matters are within common knowledge to such an extent that their mere expression cannot have the slightest effect upon the opinion in which the Army of the nation is generally held by the people…”
It was a judgment that stamped that civil liberties would not be compromised no matter what even if they compared the army of the country as foreign-funded and merely detailing the actions of the army based on the truth is not contemptuous.
While these substantial judgments were paving the way for Constitutionally enshrined absolute liberties, a schism started to appear in 1950. These judgments were given and authored by Justice Cornelius yet at the other side of the Bench, another thought started to appear.
PLD 1950 LAHORE 234
Abdur Rehman Malik vs The Crown was the title of the case and it was heard before Justice Muhammad Sharif, Justice M. Khurshid Zaman and Justice Kayani. It was related to the Publication titled “The Manifesto of Islam League” by Allama Mashriqi and the penalty was upheld by the Full Bench. The Publication spoke of the horror of partition and stated that the net result of 22 months of administration was the massacre of Fifteen Lakh Muslims, uprooting of 85 Lakh people, the detention of seventy thousand Muslim Women in the hands of non-Muslims and the loss of 21 Muslim States such as Junagarh, Bhopal, etc. The court held that this was seditious material since, according to the court, reading of the material would allow an individual to conclude that if the country was not divided then these calamities would not have befallen which the court held was a direct attack on Pakistan and further held
“The manifesto therefore tends to bring into contempt of state itself and not merely some of the persons, who may be running the State and whose shortcomings may have been responsible for producing some unfavourable conditions in the country in respect of health and material welfare. The mere fact that about the end, an appeal is made to the voters to case their votes in favour of the nominees of the Islam League at the next election would not minimize or destroy the pernicious effects on popular minds…”
The judgment was clearly surprising as it deviated extensively from the aforementioned judgments and went from Courts stating that mentioning truth, whether historic or current, is not contemptuous declared this truth to be contemptuous. It was a party manifesto by any reading of it and considering the fact that many who were sitting in the government had championed partition, it could not be stated that the mere legal date of 15th August 1947 would remove them as actors within the independence movement. It was an absurd conclusion by the Court but one that would grow further and further.
Yet the principles being promoted by Justice Rashid started to spread to other Courts of Pakistan as well and this was seen most in the Chief Court of Sindh.
PLD 1950 SINDH 49
This famous case was heard before the Single Bench composed of Justice Hassanaly Agha and the title of the case was M.A Khuhkro vs The Federation of Pakistan. The issue of the matter was that an order for disqualification had been passed against the Petitioner, ex-premier of Sindh, and the Petitioner petitioned to the court that such an order was illegal and that he continued to be a member of the Sindh Legislative Assembly and the Constituent Assembly of Pakistan. The Court held that the Special Court of Inquiry against him could not be deemed to be a tribunal set up under PRODA (Public and Representatives Offices Disqualifications Act 1949) and an order of disqualification could not be passed on the basis of a report thus the order was illegal, inoperative and ultra-vires. The Court also held that the Constituent Assembly had unlimited powers regarding legislative powers and no assent of the Governor-General was necessary along with no objection could be taken to the powers of the Dominion Legislature. This was a vast interpretation of the powers of the Constituent Assembly and this interpretation would be shelved for a more Governor-General-centric interpretation by the Federal Court under Justice Munir in the Landmark case of Moulvi Tamizuddin.
By 1950, the issue regarding the powers of the Constituent Assembly started to rise as the Country had no Constitution of its own and the Constituent Assembly started to legislate as a legislature to fill the continuous requirements of relevant law making. It is important to mention that the interpretation by the Sindh Chief Court was not the sole interpretation that wanted to give the Constitutional Assembly, Legislative powers absent the requirement of Governor-General Assent. Two cases are very important for this perusal and both of them concern the Federal Court of Pakistan. The interpretation these judgments provided looked to answer whether power should be with the body of the executive or the Constituent Assembly, even if the members had slowed the process of Constitution-making. Considering the distancing philosophy of Justice Rashid against an authoritative executive, it is hardly a surprise that the Courts started to interpret against the Executive power of the Governor General.
PLD 1950 FC 15
The case is titled Khan Iftekhar Hussain Khan of Mamdot vs The Province of the Punjab. The issue was the institution of the Case against the Petitioner under PRODA and the case was heard by the Special Bench consisting of Justice Cornelius and Chief Justice Munir. whilst both agreed that charges had not been established, there was a difference of opinion between the two judges which is evidence of the slowly growing schism in the courts. Since the opinion could not be resolved, the case was referred to the Full Bench and they decided that in light of the conflicting opinion, the case should be given to another judge of the High Court to be nominated by the Chief Justice and the Petitioner filed an appeal to the Federal Court against this decision. The argument presented was that the Act was itself ultra-vires since under sub-section (1) of section 8 of the Independence Act 1947, the Constituent Assembly of Pakistan was constituted solely for the purpose of framing a Constitution for the Dominion and that it could not pass any legislation and all other legislations could only be enacted by the Federal Legislature under the Government of India Act 1935 and should receive the assent of the Governor-General and since PRODA has not received said assent thus it was void. This was not the first time this was discussed. The Sindh Chief Court had discussed the matter regarding the legality of PRODA in the aforementioned case as well and had stated that the Constituent Assembly had unlimited legislative powers. If the Courts had declared the Constituent Assembly to be rigid and the Government of India Act 1935 to be the sole absolute framework then large-scale legislative powers would be in the hands of the Governor-General to do with as he pleases which is what saw in the case clash between the Constituent Assembly and the Governor-General resulting in the Tamizzuddin case 1955 which saw the Federal Court under Justice Munir empower the Governor-General and creating a massive Constitutional Crisis. In this case, the Federal Court, under Chief Justice Rashid along with Justice Rahman and Justice Akram held that PRODA could be regarded as an act which makes ‘provisions as to the Constitution of the Dominion’. Therefore such an act could only be enacted by the Constituent Assembly being in the nature of a constitutional law however the Court held that there was no need to determine the question regarding whether the Constituent Assembly is a sovereign body or not.
The question regarding the legality of this act also tried to be raised in PLD 1951 FC 41 titled Sarfraz Ali Khan where on a criminal appeal, the appellant tried to bring forth this question regarding the legality of the Act since it had not received the assent of the Governor-General within the leave to appeal but the Court stated that this court had already answered this question and that the act is valid. The bench was composed of the same judges as the aforementioned one.
While the Federal Court continued to focus on Civil Liberties and Democratic principles, a Schism started to form in the Courts as judgments in favour of the executive and in contravention of Fundamental Rights started to be delivered by the Lahore High Court, especially under Chief Justice Munir.
PLD 1952 FEDERAL COURT 29
By now the shining light of Lahore High Court, Justice Cornelius had been elevated to the Federal Court and this landmark case would have him on the Bench along with Justice Rashid and Justice Akram. The title of the case was Sobho Gyanchandani vs Crown. The facts of the case were that an order of detention was challenged on the grounds that the relevant law, Pakistan Public Safety Order 1949 under which detention was ordered was a temporary law and had expired after the lapse of the period of one year, the government took the position that the ordinance itself allowed extension, beyond the period of one year, to the Central Government by notification in the official gazette. Since the Central Government had passed an extension of the ordinance therefore the action was valid. The Federal Court passed its judgment on two major points. First, when a temporary law was passed by the legislature, it would die its natural death after its commencement and completion of the stipulated period. Second, the legislature could not delegate its powers of making, modifying, or repealing any law to an external authority. If it did so, it would create a parallel legislature and declare the order of detention as illegal. At the same time, the Lahore High Court faced a similar question to be answered by Chief Justice Munir.
PLD 1952 LAHORE 578
titled Rehmat Aslam vs the Crown was heard before the Single Bench of Chief Justice Munir where a detention order had been passed against an individual for his political views based on Communism. The Lahore High Court did not declare the detention illegal however they did declare the extension of detention as illegal and held that detention beyond one month was illegal and an illegal order could not be extended by even the Provincial Government. Justice Munir did hold that it was the cardinal rule of interpretation of Statutes which encroach upon the liberties of the subjects must be construed strictly and nothing in a law should be deemed to be available to be available to the government to deprive a citizen of its liberty.
While the judgment pronounced the protection of civil liberties, it did not call the reason for detention illegal and focused on the legality of the order itself.
We have seen above that the early courts of Pakistan, especially those under Justice Cornelius protected civil liberties and freedom of speech even to the extent that it included damning criticism of the military and state but by 1952, the Lahore High Court started to shift towards the Establishment that was forming and became favourable of the executive itself. The work that Justice Munir had mentioned to Justice Rashid had started.
PLD 1952 LAHORE 573
The case was heard before Chief Justice Munir, Justice Sharif and Justice Rahman and was titled Ali Muhammad Khadim vs The Crown. The contention was that the daily newspaper “Insaf” had published two articles which amounted to sedition and were asked to pay a security amount. The Petitioners claimed that the notices issued by the government did not specify under which clause this action had been taken and the Petitioners relied on a case from the Bombay High Court stating that whenever a charge notice was to be issued, specific clauses needed to be mentioned otherwise the executive can charge them for some other clause. Justice Munir held that this contention was not valid since the Advocate-General had appeared before the court and the court had asked them to highlight which portions of the article they took offence to and which clauses it attracted which the AG did. This was indeed a miscarriage of justice as it is not at the stage of litigation that the litigant is to be informed of his offence but before it. The first article was regarding the raids that were conducted against the offices of the Islam League and that the object of the Islam League was to highlight the irreligiosity of the state, Muslim League and save the oppressed Muslims in Pakistan and India. In the article, the government was charged with intentions against Islam and the Islamic State of Pakistan whereas in the second Article, it was contended that the object of the Islam League is the unification of all parties under the name of Majlis-i-Islam under the same principles as that of the nations sitting in UNO and this organization should work for the betterment of the Muslim World. It was largely a reproduction of the speech given by Allama Mashriqi. The Court held that calling the government an enemy of Islam and stigmatising it as irreligious was to inflame the popular mind and create unrest amongst the ignorant was the definition of sedition and the action taken was completely legal.
PLD 1952 LAHORE 222
The case of The Crown vs Faiz Muhammad Faiz Ludhianvi was heard before Chief Justice Munir and Justice Muhammad Jan where the respondent was accused of having published three un-authorized news sheets and the magistrate had acquitted him stating that none of the documents in question were news sheets. The respondent was the headmaster of District Board High School Bhalwal and had been carrying on the business as a bookseller in the name of his minor son and had acted as a press correspondent and had published a pamphlet against the local tehsildar and police. After he resigned from his post, he focused on his career as a bookseller. His sons were students of the school he was headmaster at. The current headmaster contended that the respondent was blackmailing him whereas the respondent stated that he was not blackmailing him but simply highlighting that the condition of the school had greatly deteriorated under his oversee and it was common knowledge. The magistrate had accepted this contention that the deterioration of a school in a pamphlet is not a news sheet and that the contention regarding blackmail was unproven but the High Court disagreed. They stated that one of the pamphlets highlights that the headmaster was using students as political tools and large gangs of students were being used to attack anybody who criticized the headmaster including the respondent himself who had thrown stones at his shop and he should be removed for someone else which the court held was news-worthy information as well as another article which stated that the headmaster was creating private funds to be taken from students under the title of Parcha as well as highlighting an incident committed by the students where some had burned the bushes and plants of the garden of the Municipal Committee. The Court held that it amounted to news and that the Courts should take
“..a grave view of such defamatory leaflets particularly when they are directed against public servants printed matter vilifying a public officer which is broadcast to the public has a most unhealthy effect on the administration. It disturbs peace of mind of the officer concerned and causes irretrievable damage to his reputation, however innocent he may be. It detracts his attention from his normal duties and thus adversely affects his efficiency.”
The respondent was fined 50 rupees and a week of imprisonment for each count. A shocking departure from the previous judgments. It was clear that the Court had created individuals who could not be criticized. A practice that has continued to this day. These judgments show that the Lahore High Court had slowly come to believe that the executive must be protected and this ideology was being promoted by Justice Munir and it is here that the seeds of the establishment were placed and by 1953, it was not just Justice Munir as was seen in the subsequent case.
PLD 1953 LAHORE 172
The case was decided by Justice Rahman and Justice Muhammad Jan. It was initially placed before Justice Cornelius in 1952 who had referred it to a larger Bench Court. Titled Syed Zahir Ul Hassan Jilani vs The Crown wherein an externment order was passed by the Home Secretary of the Punjab directing said person to leave the Punjab Province within 36 hours. The Order was passed under the Public Safety Act 1949 on 14th November 1950. He was charged with defiance and was tried and punished with rigorous punishment for one-year imprisonment. When the Criminal Revision came before Justice Cornelius, the court took the view that it was the duty of the Crown to prove the case and to establish that the order which was disobeyed was legal and made in accordance with the satisfaction of the Act. He relied upon two judgments of the Bombay High Court which had held that the onus to establish abridgement of fundamental rights was placed on the authority concerned. Cornelius was of the view that the point was never taken before the Court and a larger bench should oversee this consideration, especially in light of the judgments of the Bombay High Court. The bench completely differed from the view of the Bombay High Court and held that the onus was on the person burdened under the order and that no evidence was required to be led by the prosecution and that presumption could be drawn against the person. It was for the person to prove that he was a bonafide person of Punjab and had simply relocated to Karachi. The conviction was upheld. It was a shocking judgment especially when the country was in a nascent stage with a slowly growing executive. It was the duty of the Courts to stand up and protect the common citizens who were too powerless in the face of resourceful and arrogant officials. The Lahore High Court, which was arguably the strongest Court in the country bowed to the executive and began a reign of official terror that to this day continues and with that, the Courts under Rashid came to its last year. By 1954, the Schism in the Judicature started to become clear.
PLD 1954 LAHORE 1
The case was placed before a Full Bench composed of Chief Justice Munir, Justice Rahman and Justice Muhammad Jan and the title of the case was Abul Khair Maudoodi vs The Government of Punjab and was known as the case of “Tarjuman ul Quran”. The publication had Articles that the Government found offensive. The Court stated from the start that it was not its job to determine whether the veracity of the claims was true or not, which was in contravention to its previous judgments, and held that the job of the Court was to solely focus on whether the words could incite hatred, contempt or dissatisfaction against the government or not. The article stated that the protections afforded to government officials and public men were creating arrogant officials who consider themselves above the law and stated that the Public should have the power to institute suits against public officials so that incidents like the village would not happen. Then the Article details on what happened which was the following within the judgment,
“After all, it was the result of this very "protection" that Police Constables fell upon a village in Pakistan like Sikhs and Sewa Sanghis at the instance of a few high officers. They not only laid hands on lives and property but also ravished the women of the entire village and an officer publicly said that the next generation of this village should be the progeny of constables only. In spite of this no steps could be taken against them, simply because the wronged people of the public could not prosecute these officers without the sanction of the Government, and the Government (which came into power through Police) considered the prestige of its Police more valuable than the chastity of the women of its nation. How can any gentleman, after these disgraceful events, have the cheek to say that these public officers need above‑mentioned protections for the performance of their duties. Such protection is not required for performance of duty but for perpetrating villainies. For the discharge of duty no more protection is needed than that a punishment be proposed for anyone who brings a false complaint against a public officer.”
The court held that the words did indeed bring hatred upon the government and printers and publishers were responsible and the action taken by the Government was the correct one. The Court also held that the publication in question was indeed a newspaper since it was a periodical containing public news and comments on public news.
It was clear that the state of Pakistan was actively suppressing any news through the Press Emergency Act that it found unfavourable. Case after case were being filed and this was again seen in the following case.
PLD 1954 LAHORE 14
The case titled Mazhar Ali Khan vs The Governor of Punjab was heard by Three bench Justice Rahman, Justice Muhammad Jan and Justice Kayani wherein the contention was that the Petitioner had published a sarcastic article against the Public Safety Act whose story revolved around three individuals talking and stating that the PSA was the cure for the Mental Condition of Critical Thinking. It criticized the law in a sarcastic manner to be draconian. The government took offence however Justice Rahman and Justice Jan took a stand and stated that whilst the Petitioner had indeed crossed limitation in his criticism however the Court cannot be brought into action against every single line or word that is published in criticism and to declare all criticisms to be a taboo. Justice Kayani however disagreed and in his dissenting note, wrote that the Article was mischief and openly declared that he was unhappy with the conclusions of his brother judges and that the Courts need to draw a line on all criticism and only constructive opinion is acceptable and that such judgments will give way for publishers to spread more hatred. His note was highly unprofessional and emotional but it showed that the High Court was now fully supporting the Executive and had no patience for concepts like Free Speech. His note speaks of the ideology that the courts must stand with the executive and protect the government against unfair criticism or all criticism.
Before I conclude this study into the time of Justice Rashid, there are two cases that I must mention. The first concerns the famous Rawalpindi Conspiracy Case which was an aborted coup attempt by Major General Akbar Khan. He was arrested and the case was PLD 1954 FC 87 and the other case is of the Sindh Chief Court PLD 1953 Sindh 37.
PLD 1953 Sindh 37
The case was titled Hassan Nasir vs The Crown and was heard by Chief Justice Hassanally Agha and Justice Z.H. Lari. The contention was that the individual was a respected Communist politician and was ordered to be detained by the Central Government under the Security of Pakistan Act 1952 for being a trained communist and being in activities of the Communist Party. The Sindh Court, staying true to the principles of Civil Liberty declared his detention as wrongful and declared that being a mere party member is not a crime and the state could not be endangered simply because of political affiliation. The Sindh Chief Court continued to herald the principles of fundamental rights even when the Lahore High Court was becoming more pro-establishment. With that, we will look into the last case. This case set the precedent of the Court giving up its judicial authority to more authoritative courts.
PLD 1954 FC 87
The contention was that Major General Akbar had led an aborted coup attempt which resulted in several arrests in 1950 including the venerated poet Faiz Ahmed Faiz. The Executive knew that there was a chance if it went to trial, courts may take a lenient view or testimonies could be published highlighting the failure of the state in the 1948 Kashmir war and the subsequent functioning of the government. A Special Law was passed titled Rawalpindi Conspiracy Act 1951 which created a special tribunal for the trial of the case whose three judges were to be appointed by the Central Government and each of them would be an incumbent judge of the Federal or High Court. The tribunal tried and declared both Faiz and General Akbar to be treasonous and sentenced them to life imprisonment for General Akbar and four years of rigorous imprisonment for Faiz. They filed appeals to the Federal Court and declared the law as void on the grounds that this act was not constitutional at all even within the definitions of previous judgments.
The case was titled Ex. Maj. Gen Akbar Khan & Faiz Ahmed Faiz vs The Crown and was heard before Justice Cornelius, Justice Akram and Justice Shahabuddin.
The Court disagreed with the contention of the Appellants and held that the Independence Act had the legislatures of the new dominions conferred with powers to make laws for the dominion including laws having extraterritorial operation and stated that the validity of the Act could not be brought into question on this argument however leave to appeal was also denied which would eventually create the aforementioned bad precedent. The Federal Court stated that
“the Act itself had a section which stated that no order, judgment, or sentence of the Special Tribunal would be called in question in appeal or revision or otherwise howsoever in any court and that no court should entertain any plea as to the jurisdiction of the Special Tribunal.”
This was a devastating judgment by the Federal Court because it not only gave the Legislature and the Executive to create a loophole with which they could weaken the jurisdiction of the Court but also created parallel legal systems which would diminish the authority of the courts of Pakistan. The aforementioned line would eventually feature in nearly every act that looked to create any tribunal, departmental hearing or any other form of the executive-branded judicial system. It divided the Judicial system of the country. One that functioned under the Executive and one that functioned under the Judicature. The Rawalpindi case is further important because it was the first principal statute providing for a special court to be constituted by the Central Government through notification and thus they could bypass regular courts and the dispensation of justice by the common courts and thus these special courts would become a routine matter later in Pakistan. If the Federal court had shown vision while deciding the aforementioned case then the trajectory of the Judicature would have been very different for Pakistan. They should have known that the Executive was trying to circumvent the powers of Court for favourable outcomes and would eventually use this method to form special courts of pliable judges for required results but perhaps the most important thing to notice was that this direct nomination would impact the independence of Judiciary as this started a close liaison between Judges and Government as Judges started to favour certain judges by nominating them to important tribunals and other powerful bodies and those judges would return the favour with their judgments. This relationship would be cemented as Pakistan slowly entered the days of Governor-General Ghulam Muhammad, President Iskander Mirza and most importantly Field Marshal Ayub Khan.
CONCLUSION
Justice Rashid retired as the Chief Justice of the Federal Court in 1954 and is remembered as a thorough gentleman and a man of integrity. It is to his credit that the Federal court, in its early years, enjoyed a high reputation for integrity and competence. While his name has been lost to time, his judgments show that he was a man of fairness and equity. He lived a reclusive life, avoiding any press statement or public statement which may invite controversy and thus his prestige remained forever untarnished. His retirement was in action to his views of the Judicature. He passed away in 1979.
Justice Munir would become the Chief Justice of the Federal Court in 1954 bypassing four Federal Court judges. He was appointed by Ghulam Muhammad who was well entrenched in the Military Establishment and was friends with Munir. Both were from the clan of Kakazai and it is well known that a conspiracy was hatched to bring Munir to the position of power. The obstacle were Justice S.M Akram and Justice Shahabuddin as Justice Cornelius and Justice Sharif were junior to him in the High Court. Shahabuddin was pliant and S.M Akram was the issue. It is believed that he was entrapped to forego the office of Chief Justice and accept Justice Munir. A note was put up through the Law Ministry citing the case of some countries of the Commonwealth that had status of Dominion could request the British Government to nominate a Law Lord for the appointment of Chief Justice. When Justice Akram heard this, he felt very resentful of the move because he did not wish for lordship of a British Judge and implored to Ghulam Muhmammad to not import a judge and that he would have no issue with any judge being appointed to the position as long as that judge was a Pakistani and this was the trap. Ghulam Muhammad suggested Justice Munir and he agreed. It was a sick display to keep a patriot Bengali judge from reaching the coveted office. Justice Munir would remain in power till 1960.
Justice Munir was a top jurist and his judgments are evidence of his legal mind such as PLD 1958 SC 41, PLD 1957 SC 9, and PLD 1960 SC 237 along with many others but it was clear that whilst he was a great jurist, he was not meant for that office as he lacking conviction and commitment. He was forced to repay the favour to Ghulam Muhammad in the Moulvi Tamizuddin Case which threw the constitution out of the window and in the Dosso case which legalized Martial Law and the dreaded FCR. He would spend his entire duration as Chief Justice trying to balance Moulvi Tamizuddin with his subsequent judgments leading to legal gymnastics witnessed in the cases of Usif Patel and The Governor General Reference. Like a castle of sand, once kicked, his attempts to salvage anything were lost and he would forever spend his retirement trying to justify those judgments. His tenure would be followed with Justice Cornelius which would be called the Golden era of the Judiciary. The Period of 1960-68 but by then it would be too late. Despite the efforts by Chief Justice Cornelius, the Establishment was truly formed and the Courts were poisoned. The Courts would eventually become part of the Establishment. They would become the Courts of Munir.
[1] PLD Central Acts and Notifications 442
[2] PLD 1951 Central Acts and Notifications 447
[3] Recollections and Reflections, Muhammad Shahabuddin
[4] PLD 1957 SC 272 details the history of the good judge
[5] PLD 1949 Central Acts and Notifications 398
[6] PLD 1949 Journal 13/14
[7] PLD 1949 Journal 15
[8] Section 3,4,5,6 and 7 of the Act
[9] PLD 1949 Journal 14/15
[10] History of Judiciary by Hamid Khan
