The petitioner rebuts arguments made by respondents in the PCO Judges case. First, the oath taken by Chief Justice Abdul Hameed Dogar and other judges under PCO 1 of 2007 after the Supreme Court's 2007 decision was invalid. Second, General Musharraf's actions in dismissing the 2007 judicial order and imposing emergency violated the constitution. Third, there were no vacancies when non-de jure Chief Justice Dogar made appointments, as the de jure judges were still holding office. The petitioner also argues the Tikka Iqbal case does not justify increasing judicial positions. Chief Justice Dogar's decision in that case disregarded the original petition and Musharraf's actions were self-serving, not

1. Moot Court Competition Islamabad (MCCI) 2012
USEFP, 30th December 2012
PETITIONER: REBUTTAL ARGUMENTS, PCO JUDGES CASE
Sahar Saqib (Finalist)
If Your Honour will allow, counsel for the Petitioner would like to rebut some of the arguments
and submissions of their learned friends, the Respondents.
Counsel, if you could kindly take note of some of these clarifications we will request of you.
Firstly, the taking of oath by Chief Justice Abdul Hameed Dogar, as he was then called, and 4
other judges under PCO No. 1 2007 after the de jure Supreme Court’s decision dated 3rd
November 2007 is immoral, per incurium, void and a nullity in law.
Secondly, under Article 190 of the Constitution, all authorities including General Pervez
Musharraf himself were obligated to act in aid of the Supreme Court. Therefore the dismissal of
judicial order dated 3rd November 2007 in the case of Wajihuddin Ahmad, being binding on all
aforementioned authorities, was in clear violation of Article 190. The imposition of emergency
by General Pervez Musharraf was also a blatant violation of the same judicial order and also
seriously undermined the independence of the judiciary.
Thirdly, learned counsel, at the relevant time of this petition, the de jure Chief Justice Iftikhar
Muhammad Chaudhry and 16 Judges of the Supreme Court were under house arrest and were
wrongly withheld from holding their respective offices. During this time, there was no vacancy
in the highest of courts as the de facto members of Superior Judiciary were still very much
holding their rightful posts. Yet still in a most unconstitutional manner, non de jure Chief Justice
Abdul Hameed Dogar along with other judges were illegally appointed. That is why the increase
in number of members of the Superior Judiciary under the Finance Act 2008 is not justifiable.
Counsel, you have heavily relied upon the case of Tikka Iqbal Muhammad Khan in your
arguments. In itself, the lexis made between this case and those of Begum Nusrat Bhutto and
Syed Zafar Ali Shah is illogical and mutatis mutandis, as the facts of the former and the twain is
entirely different. These cases formed the basis of the judgment in Tikka Iqbal and the dictum
laid down therein could not be extended to it, as was attempted by the tribunal.

2. Also, in the haste decision of non de jure Chief Justice Abdul Hameed Dogar in Tikka Iqbal, there
is a clear disregard of the original prayer of the case, and the judgment consequently made. As
mentioned in Para 15 of the main decision in Tikka Iqbal’s case, Proclamation of Emergency was
founded on two main grounds, those being the security situation prevalent in the country and
the alleged erosion of trichotomy of powers by way of suo motu judgments which interfered
with Government policies and adversely affected the economic growth and law and order
situation of the country. Surprisingly, not a single incident was discussed in the decision so as to
conclude that it was the result of the suo motu actions taken by the de jure Chief Justice of
Pakistan Iftikhar Muhammad Chaudhry.
Next, the instruments that were passed by General Pervez Musharraf in his capacity as Chief of
Army staff under the garb of declaration of emergency, those being the Provincial
Constitutional Order No. 1 of 2007 followed by the Oath of Office (Judges) Order 2007 were
solely for his own personal gain and benefit, were illegal, unconstitutional, and made him a
usurper. The clinching proof of his dictatorial intentions is the amendments that he made to
the Constitution of Pakistan 1973, namely Article 270AAA, which was in direct contravention of
Articles 238 and Article 239.
Articles 238 and Article 239 provides the correct method through which the Constitution can be
amended.
Article 270AAA, which was inserted by General Pervez Musharraf in the form of the mutilated
8th Amendment, provides that the President may also maintain his post as Chief of Army staff
concurrently. Never before in the three military takeovers has that our nation has had to
endure had such a need ever arisen, demonstrating clearly General Pervez Musharraf’s self
interest and malafide intentions.
The fresh appointments which were made after 3rd November 2007 could not be made in
consultation with Justice Abdul Hameed Dogar, who was neither a de facto Chief Justice of
Pakistan, nor could he be described as the Acting Chief Justice of Pakistan under the meaning of
Article 180 of the Constitution.
Thank you, Your Honour.