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Honourable Chief Justice of Pakistan Speech on Full Court Reference Full Court Reference

Islamabad: On the Demise of
Late Justice Muhammad Afzal Zullah
Former Chief Justice of Pakistan

By
Mr. Justice Iftikhar Muhammad Chaudhry
Chief Justice of Pakistan

[2nd January, 2012]

My brother Judges;
Attorney General for Pakistan;
Vice Chairman, Pakistan Bar Council;
President, Supreme Court Bar Association;
Members of the Bar;
Ladies and gentlemen!

Assalam o Alikum!

We meet today in sad and somber environment to pay homage to a jurist Mr. Justice Muhammad Afzal Zullah, the former Chief Justice of Pakistan, who departed last week for his eternal abode.

As Muslims, it is our firm belief that Allah Almighty grants life and takes it away. The creation of life is not in vain or without purpose. Every soul which comes to this transitory abode carries obligations: obligations which man owes to his Creator and obligations which man owes to himself, his near and dear ones and the society at large. Again, as Muslims it is our belief that life in this transitory stage is indeed a struggle, preparing for life in the eternal abode by doing righteous deeds and serving others.

In the limited time span, Mr. Justice Afzal Zullah vigorously pursued his mission of serving the society and doing good for the betterment of the nation. With hard work and dedicated efforts, he served the nation by consistently striving to give relief to the aggrieved, come to the rescue of deprived and oppressed segment of society, restore rights and entitlements to the legitimate owners, which he did both as a counsel and Judge, through the dispensation of justice.

Mr. Justice Afzal Zullah will always be remembered for his sterling qualities of head and heart and strong character. He vigorously pursued his mission of operationalizing the guarantees contained in the chapter of fundamental rights in the Constitution to ensure that the benefits of law reach to all citizens. Besides being an able and enlightened judge and jurist, he was also a loving husband and a good father. He had enormous attachment with his lady wife and love and affection for his children and near ones.

He had great attachment with his mother. When asked as to what is the significance of the epithetic Zullah with his name Muhammad Afzal, he responded that it is because his mother used to call him by this name and out of his sheer respect for his mother he added it as a part of his name. He had also desired to be buried next to the grave of his mother and his desire was carried out by his loving family members.

Mr. Justice Muhammad Afzal Zullah started his career as lawyer from the Rawalpindi Bar, where he mostly dealt with the criminal cases. His lordship was elected as Secretary of the Bar. Thereafter, he was shifted to Lahore and where he took interest both in civil and criminal cases.

His lordship always upheld the highest traditions of his office as Judge and Chief Justice of the apex Court in the dispensation of fair and impartial justice. His contribution towards administration of justice will remain a beacon of light for others to follow.

Almighty Allah bestowed him with extraordinary faculties of conception, perception and understanding the human problems and profound sense of justice. He was a source of strength for us and will always be cherished in our memories for his qualities of wisdom and integrity and upholding the rule of law. As a Chief Justice, through his colossal efforts, a campaign was initiated to decide cases justly, fairly and expeditiously.

Through his strenuous efforts he gave new dimensions to the judicial activism, rather he is amongst the founders of judicial activism in Pakistan. His lordship was very strict in office discipline and he spared no one to lower the dignity of the Court. The eradication of corruption in all its manifestation in the judiciary was his prime concerned.

His lordship was great supporter of protection of Human Rights, especially to deprive section of the society. Apart from his judgments this spirit of redressing the grievance of depressed classes is evident from the Quetta Declaration, 1991. His lordship was of the view that despite Article 4 and 25 of the Constitution which envisage equality before law, only the rich and resourceful, to the extend, are able to protect their rights, while the poor are lift undefended , therefore, the doors of the traditional legal system in way have been closed to the poor.

In order to rectify the situation and to eliminate this disparity it was thought necessary that a body should be created from the existing judicial and administrative set-up in the country assigning certain functions to it so that all citizens and specially the deprived and aided sections of the community become conscious and assertive of their rights guaranteed by Islam, the Constitution and the law.

This declaration provides a complete mechanism and scheme to gear up the awareness and enforcement of fundamental rights. In this regard a “Central Council for Awareness and Enforcement of Human Rights and Obligations” was also constituted.

Under Article 25 (3) of the Constitution, it is responsibility of the State to make special provisions for the protection of women and children. Here I recall one of his reported case[1] of 1992, wherein, a poor lady from Peshawar who could not present her complicated case of inheritance before the Court, his lordship was pleased to provide her the assistance of a competent civil lawyer. I would like to quote the valuable words of his lordship when he observed:

“Although the word State, here, prima facie, does not include judiciary as it is not included in the definition in this behalf in Article 7 of the Constitution yet in the peculiar context of Article 25(3) the State would here also include the judicial functionaries.”[2]

The notion of awareness of lordship is also evident from the fact that his lordship also imparted education for seven years to the law students and enlightened them through his valuable insight. Apart from this he also remained syndicate, Member Board of Trustees, Member Section Board of various universities and also remained Chairman, Board of Editors of Digest of Islamic knowledge.

This educational spirit was also present in the lady wife of his lordship, who also remained principal in an educational institute for about fifteen years. From the hands of such visionary and intellectual individual the foundation stone of the building of Federal Judicial Academy was laid down on 13th April, 1991. His lordship vision of the Federal Judicial Academy is that of centre of excellence dedicated to the pursuit of judicial disciplines.

His lordship remained stalwart for justice to the downtrodden classes. He was really a true judge who never considered for the reactions of the people and decided according to his conscious fairly, impartially, without any bias or prejudice and worked for the rule of law throughout his life. He was the real depiction of the maxim, “Let justice be done, though the heavens should fall.”

Having such legacy with it this Court will always work for the betterment and welfare of the people and never allow any transgression on the dignity of its citizens. We have sworn to preserve, protect and defend the Constitution.

This Court will always decide cases according to the dictates of law, without fear or favour, affection or ill-will. Being the torch-bearer this Court will never let down the dignity inherited from such a legend. The decisions of this Court stand only on the affirmation of rule of law and constitutionalism.

The Court is fully aware of its constitutional role that is to administer justice freely, fairly and impartially, cases are adjudicated on its own facts and disregard of consequences which may follow and irrespective of the status of the parties that appear before the Court.

His landmark judgments will always provide intellectual guidance to both members of the Bench and the Bar alike. He has been considered to be amongst the pioneers of public interest litigation in the country. He initiated suo moto action on a telegram, in the case of Darshan Masih v. The State[3], when he, prima facie, considered it to be a case falling in the category of public interest litigation and within the jurisdiction of this Court under Article 184 of the Constitution.

This being the first case of its nature, certain clarifications were made relating to procedural and other elements appearing in the case. It was observed that a telegram has never been earlier made the basis by the Supreme Court of Pakistan for action, but, there is ample support in the Constitution for the same. Under Article 184(3) “the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”

The questions of procedural nature relating to undertaking proceedings or taking cognizance of a case under this provision, have been dealt with in the case of Miss Benazir Bhutto (PLD 1988 SC 416). The acceptance of a telegram in this case is covered by the said authority as also by the due extension of the principles laid therein. Such extension would depend upon the facts and circumstances of each case and nature of public interest involved and importance thereof.

He always provided relief and protection to the poor, downtrodden and weakest segments of society, including the women. In the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi[4], the brothers of a female co sharer claimed that their sister had relinquished her share in the property inherited by her.

The case was decided by a Bench headed by Justice Zullah, wherein it was held that such relinquishment by a female, was opposed to “public policy” as understood in Islam and was void. It was further held that the brother cannot legally claim “adverse possession” against his sister and much less “ouster”.

Similarly, in the case of Mst. Inayat Bibi v. Issac Nazir Ullah[5], the question came for consideration as to whether in case of succession to property left by a Christian male, in contest between the widow and two daughters on the one side and a son and his nephew on the other, the customary law depriving the females of inheritance was not contrary to justice, equity and good conscience? The Court declared that the Succession Act, 1925, by statutory dispensation having determined the mode of succession when a Christian male died, as such, oppressive customs would not apply. Resultantly, the Christian females were allowed to inherit in presence of the male heirs.

Mr. Justice Muhammad Afzal Zullah established the Al- Mizan Foundation for the welfare of judicial officers and staff of the Supreme Court, High Courts and subordinate judiciary. Similarly, the planning for the construction of residences for the judges of Supreme Court in Islamabad was also initiated during the tenure of his lordship as Chief Justice of Pakistan.

It would be unjust if I part without acknowledging his lordship’s dedicated and untiring efforts for the present magnificent and inspiring building of this Court, which was constructed within a short span of only three years.

The possession of this building was handed over and become functional on 22nd March, 1993. It depicts the respect and command of the Court. Every corner of it will always keep the memories of his lordship alive in our heart.

In the end, on my own behalf and on behalf of my brethren Judges, I would like to share the grief of his family members. Let us pray for the departed soul that he may rest in peace and Almightily Allah grant fortitude to his family to bear the loss.

For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001
Email: pro_scp@yahoo.com

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