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Writ Petition No. 1617 of 1973, decided on 27th August 1973.

(a) Constitution of Pakistan (1973)

Arts. 189 & 190-Supreme Court decision-Binding on all other Courts-Resolution passed by National Assembly after obtaining advice and opinion of Supreme Court and in conformity with such advice and opinion-Request to High Court to declare such reso lution as passed without competence and lawful authority Tantamounts to asking High Court to sit in judgment over views of Supreme Court-Petition, held, totally misconceived.

(b) Constitution of Pakistan (1972)-

-- Art. 3-National Assembly proceedings Passing of resolu tion-Part of legitimate functions of National Assembly-Cannot be questioned in any Court .

In re: Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan P L D 1973 S C 563 rel.

Sh. Saeed Akhtar for Petitioner.

K. E. CHAUHAN, J.--The President of Pakistan on 2-7-1973 sought advice of the Supreme Court of Pakistan under Article 187 of the Interim Constitution as to whether ------

"can the resolution of the purport described in Paragraph 6 above (that is of the letter of Reference) (the bracket is ours) and envisaging such Constitutional measures as may be necessary before the according of formal recognition be validly adopted by the National Assembly."

2. The Resolution mentioned above was that which the National Assembly wanted to adopt with regard to the recognition of "Bangla Desh". The details of the actual Reference made and the Resolution are contained in the judgment of the Supreme Court In re: Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan (P L D 1973 S C 563) and need not be reproduced here in extenso. The Supreme Court answered the question referred to them in the affirmative. How ever, following portions front the judgment of the Supreme Court are worth-noticing;

"The form of the resolution proposed to be placed before the House, itself contemplates that legal and Constitutional measures may be necessary to give effect to the object sought to be achieved. It is for this reason that a firm assurance" is being sought from the Assembly. No violation of any provision of any Constitution is, therefore, even contemplated. Such an assurance too will be nothing more than a pious wish, for legally it would not bind any future Parliament or present Parliament, for when the legislative measure or the Constitutional amendment is brought before a House, the House will be free to consider it uninhibited by any assurance that it may have given earlier. No Legislature can legally abrogate its sovereign right to legislate as and when a legislative measure is brought before it in the light of its own provisions. The Legislature cannot be bound by any previous promise or assurance to legislate in a particular manner. Such a promise or assurance will neither be legally binding nor enforceable. Be that as it may, there can be no legal or Constitutional bar to the resolution being taken by the House to the effect that it would support the Government's future proposals for Constitutional amendments and/or legislative measures. This does not, however, mean that the validity of the legislative measures and/or the Consti tutional amendments, if and when made, will not be amenable to a challenge in the Courts of law upon valid grounds, if any available.

In this view of the matter, although we are unanimously of the opinion that there is no legal bar to the National Assembly considering or adopting a resolution of the purport described in Para. 6 of the Reference, yet as suggested by Mr. Manzoor Qadir, we wish to make it clear that we express no opinion at this stage as to the constitutionality or the validity of the measures, legislative or executive, that may have to be taken before the according of formal recognition. We answer the Reference accordingly."

3. After obtaining clearance from the Supreme Court, the National Assembly on 8-7-1973 passed a resolution, a copy of which has been filed by the petitioner in the form of a cutting from the daily Pakistan Times, dated the 10th of July 1973, which reads as follows :----

TEXT OF RESOLUTION

The resolution reads;-------

"The National Assembly believing that the spirit of Muslim brother hood should govern the relationship between the people of Pakistan and those of the area which now calls itself Bangladesh, acclaims all efforts directed towards the healing of the wounds suffered by both communities in the tragic events of 1971. The Assembly is confident that mutual forgiveness and understanding will eventually prevail over; the rancour and hate which democratic and progressive elements in both communities equally deplore.

In this context, the National Assembly endorses the stand taken by the Government with respect to the immediate issues which need to be resolved for the normalisation of the situation in the subconti nent. The Assembly is convinced that a pre-requisite of such normalisation is the full implementation of the provisions of Security Council Resolution 307 and the Geneva Convention of 1949 and the release and repatriation of the prisoners of war and civilian internees without any further delay.

The Assembly strongly supports the Government's position on the issue of the holding of trials of some among the prisoners of war and civilian internees on alleged criminal charges and urges all concerned to respond to the need of reconciliation by refraining from holding any such trials which would cause a grave set-back to the efforts being made towards the normalisation of the situation in the subconti nent.

In accordance with these principles, the Assembly is of the opinion that the Government of Pakistan may accord formal recognition to Bangladesh and initiate such constitutional measures as may be necessary therefor, at a time when, in the judgment of the Govern ment, such recognition is in the best national interest of Pakistan and will promote a fraternal relationship between the two commu nities."

4. The petitioner has filed the present writ petition making the following prayer :-

"For the aforesaid reasons, it is respectfully prayed that the Resolution passed by the National Assembly in its Session held on 8-7-1973 be kindly declared to be without lawful authority and the respondent be restained from announcing any recognition of Bangla- Desh."

5. From what has been written above, it will be evident that the resoultion in question was passed after obtaining the advice and opinion of the Supreme Court. The Supreme Court held that such a resolution could be passed, and after that to ask this Court to declare that such a resolution could not have been passed or that it was without lawful authority is an attempt to ask us to sit in judgment over the views of the Supreme Court.

Obviously, such an attempt cannot succeed because in Article 189 of the Constitution' of the Islamic Republic of Pakistan, it is written that :-----

"Decisions of Supreme Court binding ors other Courts -Any decision of the Supreme Court shall, to the extent that if decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."

Coupled with this is Article 190, where it is written :----

"Action in aid of Supreme Court.-All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."

The petition filed by the petitioner in this Court, it is thus evident, is totally misconceived. Even otherwise such resolutions cannot be questioned in any Court as was held by the Supreme Court in the aforesaid case where at page 574 their Lordships observed as follows :-

"This is a part of the legitimate functions of .the National Assembly and, therefore, the passing of such a resolution cannot also be questioned by a Court by reason of the provisions of Article 93 of the Interim Constitution. Such a resolution would be a matter relating to the internal proceedings of the House, which, as held by this Court, in the cases of Pakistan v. Ahmad Saeed Kirmani P L D 1958 S C (Pak.) 397 and Lt.-Col. Farzand Ali v. The Province of West Pakistan P L D 1970 S C 98 are immune from challenge in the Courts."

6. As regards the prayer to restrain the respondent-Government "from announcing any recognition of Bangla Desh' ", suffice it to say that sufficient safeguards are contained in the opinion and advice of the Supreme Court, relevant passages whereof have been reproduced above. In the face of these safeguards, there is no justification for approaching this Court for claiming injunction of the kind prayed for in the writ petition which does not merit admission on any count. The writ petition appears to us to be out of place and uncalled for, especially, when there is already a view of the Supreme Court on the point and the learned counsel is also the same who earlier appeared in the aforesaid Reference in the Supreme Court on behalf of the "Spokesman of the Opposition" but later on withdrew.

7. The writ petition is dismissed in limine.

S. A. H. Petition dismissed.

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