SHAH NAWAZ KHAN, J.-Mr., Gohar Ayub Khan, Chairman of the Tehrik Istiqlal Party, N.-W. F. P. Who is presently confined in Central Jail, Peshawar, is being tried before the Special Tribunal, for offences under the D. P. R./M. P. O. In the following three cases registered against him in Police Station, Bala Kot (Hazara) : - "(i) Case F. I. R. No. 114, dated 25-10-1976 under section 16, M. P. O./ rules 42 and 49 D. P. R. ;
(ii) Case F. I. R. No. 26, dated 22-6-1976, under section 16, M. P. O./ rules 42 and 49, D. P. R. ; and
(iii) Case F. I. R. No. 27, dated 22-6-1976, under section 16, M. P. O. And rules 42 and 49, D. P. R."
2. In this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the registration of such case, trial of the petitioner by the Special Tribunal constituted under section 8 of the Defence of Pakistan Ordinance, 1971, the constitution of the Special Tribunal itself, applicability of the provisions of the relevant Rules of the D. P. R. For which he is being tried, and his detention, as such, have been challenged. In particular, it is alleged that the cases registered against him are the result of mala fides and are based on concocted versions and that no offence has been committed by him under any provision of the D. P. R. Or the M. P. O. Vires of the Defence of Pakistan Ordinance and the Rules made thereunder and also the legality of the Special Tribunal, N.-W. F. P. And the continuance of emergency have also been assailed. Validity of Ordinance III of 1976 and Ordinance XXIII of 1976 have been attacked on the ground that these are designed to take away the power of the superior Courts with regard to the relief to be given to the under-trial prisoners in the matter of bail the latter one also on the ground that this Ordinance was promulgated when the National Assembly of Pakistan was still in session, as such, such promulgation is ultra Tires, However, when it was ascertained that on 19-7-1976, when the said Ordinance was promulgated, the National Assembly stood prorogued, this objection was dropped.
Amendments in the Defence of Pakistan Ordinance and the Code of Criminal Procedure, whereby the Special Tribunal, has been obliged to act upon the record of the prosecution and pass Judicial orders even at the back of the persons, accused by the prosecution without giving him oppor-- tunity of being heard, have also been challenged.
3. Declaration has been sought to the effect that the cases mentioned above are without any lawful authority hence of no legal consequences and that Mr. Gohar Ayub Khan has been illegally arrested and that he cannot be prosecuted in the mentioned cases with a prayer that the detention of Mr. Gohar Ayub Khan, being without lawful authority, it may be directed that he be set at liberty and tire operation of the F. I. Rs. Above mentioned, be suspended till the final disposal of this petition. Further that the solitary confinement of Mr. Gohar Ayub Khan being without legal authority, it may be ordered that the detenu b.- given food and other facilities as an under trial prisoner till he is set at liberty.
4. Before the arguments commenced, the Superintendent, Central Jail, Peshawar, was summoned to Court at the request of the learned counsel for the petitioner and the learned Advocate-General, from whom some clarifica--tions were sought with respect to the allegations made in the petition that the petitioner was not being properly treated, as under-trial prisoner, keeping in view his status and position in public life and that he has also been kept in solitary confinement. The Superintendent, Centeral Jail. Peshawar, while rebutting the allegations, said that Mr. Goher Ayub Khan (petitioner) has been given A-Class in jail with all admissible facilities and that one warder and a cook have been provided to him; that there is no restriction on his movements inside Jail.
Further that the friends and relatives of the petitioner are allowed to see and meet him and he has not been denied the facility of having contact with his lawyers, who frequently visit him for consultation, and added that the friends and relatives of the petitioner are allowed to bring any eatable for the- petitioner. The learned Advocate-General with a view to further satisfy the learned counsel for the petitioner took upon himself, as his personal responsibility, to ensure that every possible facility is provided to Mr. Gohar Ayub Khan (petitioner) in Jail, according to his status and position. Learned counsel for the petitioner, accepted the undertaking of the learned Advocate- General, with the result that the grounds taken in the petition in that regard were not further pressed and, therefore, the same do not require to be discussed in this judgment.
5. Mr. M. Anwar, the learned counsel for the petitioner submitted that there is not a single word in any of the three speeches of Mr. Gohar Ayub Khan for which he has been indicteJ, with reference to which it could be said that he has invited the audience to come into conflict with the authorities by using physical force and that none of his speeches is such from which one may conclude that he is opposed to the State and that what has been stated by the petitioner was his democratic right like any other citizen. He contend--ed that to excite disaffection towards the Government must be such as to satisfy a reasonable man that this was the intention of the person, and that the speeches delivered by Mr. Gohar Ayub Khan could not by any stretch of imagination be considered to have brought into hatred or contempt or to excite disaffection towards the Government or to have caused public disorder. Therefore no act of sedition has been committed and that rather it is the duty of every citizen to expose unhealthy and intolerable trend in the country for the purposes of improving the affairs.
6. He submitted that the gist of section 124-A, P. P. C. And rule 42 (6), D. P. R. Is identical, but whereas under section 124-A, P. P. C. An offence is triable by ordinary Courts who have no restriction on their powers to enlarge the accused person on bail, the Defence of Pakistan Ordinance, in this regard, strikes discordent note in the amended section 13-A whereunder the power to grant bail, the power of the High Court to exercise revisional jurisdiction and the power under section 561-A, Cr. P. C. Have been taken away, which is an abuse of the due process of law. Further that it is incon--ceivable that a person in whose case rule 42 (6), D. P. R. Is invoked is being treated equal with a person in whose case section 124-A, P. P. C. Is invoked. That there is no reasonable classification test for the purpose of rule 42 (6) (e), D. P. R. And that it ex facie militates against Article 25 of the Constitution which postulates equality of all citizens before law. He contended that since rule 42 (6) (e) is co- extensive with section 124-A, P. P. C. The speeches delivered by Gohar Ayub Khan cannot fall within the definition of "pre--judicial Act". In support of his arguments, he placed his reliance on an authority reported as "AIR 1943 All. 244".
7. Learned counsel for the petitioner criticised in very strong words the insertion of section 13-A in the Defence of Pakistan Ordinance and contended that this insertion by the Legislature is in clear violation of the Fundamental Rights guaranteed in the Constitution, as such, it is ultra vires of the Cons--titution, hence void and, therefore, in the exercise of its jurisdiction under Article 199 of the Constitution, this Court has the power to interfere. He urged that each of the three organs of the State has to perform its distinct part, as envisaged in the Constitution, but if the Legislature exceeds its powers, the Judiciary will intervene and will convey to the Legislature that it has acted wrongly and beyond the mandate given by the Constitution. He contended that in so far as section 13-A, D.
P. O. Proceeds, it will be seen that it curtails the jurisdiction of the High Court and as resulted in the deprivation of the citizens of actual protection of law which has been guaranteed in the Con-- stitution and that it has also taken away from the superior Courts the powers, vested in them inherently since their inception and creation. Learned counsel for the petitioner extensively quoted observations of their Lordships from the judgment of Supreme Court of Pakistan in case "Zahoor Ilahl v. State" (PLD 1977 SC 273) and contended that although their Lordships have, each separately, dealt with the question of the ouster of the jurisdiction of the High Court to grant bail pursuant to the insertion of section 13-A in the Defence of Pakistan Ordi--nance, in their judgments, but the consensus would appear to be that this Court can examine the allegations of mala fide and can grant bail and quash the proceedings pending before the Special Tribunal and that it can also declare that the provisions of D. P. O./D. P. R./M. P. O. Have been con--travened by Mr. Gobar Ayub Khan and that his detention is illegal.
8. In case "Malik Muhammad Suleman, M. N. A. v. The State (PLD 1976 Lah. 1250), a Division Bench of the Lahore High Court did not agree with the suggestion advanced at the Bar that emergency did not exist in the country and that no law inconsistent with the fundamental rights as guaranteed by the Constitution could be made by the Parliament. In that case also the validity of section 13-A of the D. P. O. Was in issue. Their Lordships have observed that, "law made during emergency by the Parliament which it was not com--petent to make or if it is inconsistent with such fundamental rights can be made by the State during the emergency and that such law cannot be challeng--ed during emergency on the grounds of inconsistencies, in that, proclamation of emergency has been given Constitutional protection and is not open to any exception. Whether or not emergency exists, all depends on the subjec--tive satisfaction of the President and he is the sole Judge of the matter and his decision in that behalf is not justiciable". Further holding that actual occurrence of war or of any internal violence is not necessary to4ustify a proclamation of emergency, their Lordships observed that: ---The President may make such a proclamation if he is satisfied that there is imminent danger of such internal or external aggression". The validity of the D. P. O. And D. P. R.
Made in pursuance of such proclamation was consequently also upheld. It was further held that the Special Tribunal could be constituted by the Provincial Government pursuant to the amendment of section 9, through the Defence of Pakistan (Amendment) Ordinance, 1976 (Ordinance III of 1976) which came into force on 14-1-1976.
9. Learned counsel for the petitioner then took us through various authorities of the superior Courts both indigenous as well as of foreign origin in the course of his vigorous attack on the Constitution (5th Amendment) Act, 1976 which resulted in the substitution of clause 3-A of Article 199 of the Constitution of the Islamic Republic of Pakistan, whereby the jurisdiction of the High Court to make an order, prohibiting to make or suspend the operation 'of an order for the detention of any person under any law provid--ing for preventive detention or for the release on ball of any person, detained under any such law, or for suspending the operation of an order to that extent, of any person against whom a report or complaint has been made before any Court, Tribunal, or against whom a case has been registered at any Police Station, in respect of any such offence, or for prohibiting the registration of such a case at a Police Station or the making of a report or complaint before any Court or Tribunal, in respect of any such offence, including the making of interim order in respect of any such person, has been taken away. As a matter of fact, learned counsel for the petitioner, in his arguments at the Bar, concentrated his attack mainly on the validity of the Constitution (5th Amendment) Act, 1976. He contended that this Constitu--tional amendment which has in turn amended Article 199 has not been made for any improvement but it rather destroys the very febric of the Constitution. He urged in strong words that the 5th Amendment in the Constitution can, by no stretch of imagination, be called an improvement and added that the word "amendment" which has neither been defined in the Constitution itself nor in any other enactment and which has not been given any special con--notation, shall have to be interpreted by having resort to the sources which throw light in this respect. He urged that amendment which means improve--ment, can be conceived and no other amendment can be made in the Constitution. He contended that by inserting clause 3-A in Article 19) of the Constitution, the Parliament has created an institution to suppress the inherent and valuable rights of the citizens, which is not a good piece of legislation as it offends against Article 4 of the Constitution which has not been suspended. Mr. M. Anwar maintained that the High Court as an integral part of the State is a repository of the sacred trust, mentioned in the preamble of the Constitution in so far as its judicial powers are concerned and, therefore, these powers can in no way be abridged or taken away. Elaborating further, he contended that under Article 8(2) of the Constitution, the State cannot make any law which takes away or abridges the rights con--ferred on the citizens by the Constitution and that any law made in contravention thereof would be void. Therefore, if it is found that the Legislature has acted beyond the verdict of the Constitution, by making such law, then the High Court in the exercise of the extraordinary powers with which it is invested can declare it ultra vires of the Constitution because the Legislative authority is equally bound to function within the four corners of the Constitution. He, therefore strenuously urged that if it is found by this Court that the Constitution (5th Amendment) Act, 1976, whereby clause 3-A was incorporated in Article 199 of the Constitution, is not a good piece of legislation as it hits against the provisions of Article 4, wherein the rights enshrined are as fundamental the Fundamental Rights, enshrined in Chapter I of Part II of the Constitution, then this Court will have the jurisdiction to declare such Amendment as null and void. He maintained that in view of the provisions of Article 4 of the Constitution, the Legislature stands disabled from making any law in contravention of the Fundamental Rights and that the Fundamental Rights guaranteed under Article 4 of the Cons--titution will all along remain in force and cannot be undone by the Legislature.
10. In the above-mentioned case reported as PLD 1976 Lab. 1252 the Division Bench of the Lahore High Court was also called upon to examine the validity of the Constitution (3rd Amendment) Act.
Their Lordships declined to accept a similar argument advanced by the learned counsel for the petitioner in that case and were pleased to observe that, "the Constitution (3rd Amendment) Bill (then in issue) had been pass-.d by the votes of more than 2/3rd of the total membership of the National Assembly, followed by its passage by the requisite number of Senate Members and was assented by the President within the prescribed time". It was consequently held that, "such amendment if it is made in conformity with the provisions contained in Part XI of the Constitution will be the expression of the will of the vast majority of the people and remedy for correcting such a violation will not lie with the judiciary but with the people who are to express their will through chosen representatives in the Parliament". Their Lordships also did not agree with the suggestion that such amendment has brought about a change in the fundamentals of the Constitution.
11. In a Karachi case (PLD 1976 Kar. 1368), a similar question had arisen before their Lordships of a Full Bench of the Sind & Baluchistan High Court for consideration and determination. In that case, Constitution (4th Amendment) Act was in issue and their Lordships while dealing with the argument, that through the said Constitutional Amendment, the jurisdiction of the superior Courts could not be ousted, have observed, that, "this is, however not to say that the jurisdiction vested in the High Court is not subject to curtailment by the process of Amendment in Article 239 of the Constitution". In para. Marked in the said judgment it is reiterated that. "The cardinal principle of the Constitutional interpretation (is) that if the language is clear the Courts are to give effect to it even if it amounts to the ouster of their own jurisdic--tion". It was consequently held that the Constitution (4th Amendment) Act, 1975, is not ultra vires of the Constitution so far as it amends Article 199. Their Lordships observed that sovereignty according to our Constitution belongs to Almighty Allah and the State exercises its power and authority through the chosen representatives of the people.
Learned counsel for the petitioner, in his arguments addressed before the Court, did not challenge the vires of the Special Tribunal or the continuance of Emergency.
12. The learned Advocate-General while taking the floor urged that so long as the Emergency remains in force through the Constitutional mandate, it cannot be challenged in Court nor the impugned amendment of the D. P. O. Made during emergency, as a result whereof the jurisdiction of this Court has been taken away in certain matters, can be gone into by this Court in the exercise of its special jurisdiction, as a result of the amendment of Article 199 of the Constitution through the Constitution (5th Amendment) Act, 1976. The learned Advocate-General, referring to a Supreme Court Authority, reported as PLD 1973 SC 49, argued that this Court derives its power and jurisdiction from the Constitution and, therefore, these are to be exercised within the limits prescribed by the Constitution itself, placing his reliance on a Lahore authority, reported as PLD 1974 Lah. 153, he submitted that the Legislature has been given extraordinary powers during Emergency and that under Article 232 of the Constitution, the Legislature can make law during emergency notwithstanding its inconsistencies with the Fundamental Rights. He contended that it has not been controverted that the offences for which the petitioner is being tried are scheduled offences and under section 9 of the P. D. O. Such offences are triable exclusively by a Special Tribunal and, therefore, this Court cannot substitute its own opinion for the opinion of the Special Tribunal, because the question whether the speeches made by Mr. Gohar Ayub Khan fell within the mischief of rule 42(6) (e), D. P. R. Or section 124-A, P. P. C. Is a pending matter before the Special Tribunal which is the creature of law, the competency of which, for taking cognisance of such offences or to refuse to release on bail an accused person in such a case, cannot be gone into, much less decided upon by the High Court in the exercise of its special jurisdiction under Article 199 of the Constitution as amended by Constitution (5th Amendment) Act, 1976. Himself also relying on the said two authorities (PLD 1976 Lab. 1250 and PLD 1976 Kar. 1368), the learned Advocate- General urged that the Constitutional (5th Amendment) Act, whereby clause 3-A was inserted in Article 199 of the Constitution, cannot be called in question. He maintained that the organ of the State which passed the Constitution has the authority to amend it under Article 238 thereof. He contended that the Courts will be within their jurisdiction to reverse or undo any action of the Executive, if any violation of the rights available under the Constitution or any Law, takes place, but added that such jurisdiction will, of course, be exercised subject to limitations imposed by the Constitution. Therefore, if there is no right under the Constitution to be exercised, what would be left-for the Courts to enforce. The learned Advocate-General maintained that cases have been registered against Mr. Gohar Ayub Khan and he is under trial before the Special Tribunal and the Special Tribunal is the authority to acquit him in case the allegations levelled against him are found to be false.
13. Ordinary powers and jurisdiction of the High Court are well defined. Special jurisdiction conferred on the High Court under Article 199 of the Constitution has to be exercised in accordance with the provisions of the Constitution. Special jurisdiction is always exercised in special circumstances and under special provisions and the High Court will exercise such special powers and jurisdiction, if it is permitted by the Constitution. Clause 3-A is an integral part of Article 199 of the Constitution, with the same effect as any other clause of that Article.
14. Learned counsel for the petitioner complained that Constitution (5th Amendment) Bill was introduced after the Supreme Court of Pakistan by a majority view, expressed through order, dated 15th July 1976, in the above--mentioned petitions of Chaudri Zahoor Ilahi had ordered the release of the detenu on bail and that by the same decision it was left to the High Court to determine the question of mala fide of the impugned action. The clear and unambiguous intention of the Legislature in enacting the Constitution (5th Amendment) Act., 1976, whereby clause 3-A, in its present form, was inserted in Article 199 of the Constitution could not be doubted and the learned counsel for the petitioner, by advancing the above arguments, seems to have accepted what the intention of the Legislature was in making such amendment in the Constitution. Mala fide of an action taken under any provision of law may be questionable, but the intention of the Legislature in making amendment in the Constitution or to make law, cannot be looked into by the Judiciary, which organ has to perform its functions strictly in accordance with the provisions of the Constitution. To amend or not to amend the Constitution is within the exclusive province of the Parliament and as held in the above-mentioned Lahore case reported as PLD 1976 Lah. 1250 the remedy for correcting any violation resulting from such Amendment will not lie with the judiciary.
There should be no hesitancy in conceding that there are no fetters on the powers of the Parliament to amend the Constitution.
15. The Constitution (5th Amendment) Act, 1976 whereby clause 3-A was inserted in Article 199 was passed in conformity with the provisions of Article 239 of theConstitution. The Legislature is the supreme Authority make any amendment in any part of the Constitution or modify it, short of complete abrogation or abrogation of the fundamental of the Constitution. Any other organ of the State is not empowered even to initiate such Amendment. Therefore, no organ of the State will have any power to challenge such amendment either on the ground that there was mala fide intention behind such amendment or that it either entails the abridgement of any Fundamental Right guaranteed under the Constitution or that such Amendment has in a way resulted in the ouster of the jurisdiction of the Courts. The Emergency is still in force. The Defence of Pakistan Ordinance, 1971, and the Rules made thereunder have been validly made in pursuance of such proclamation which is given the cover under the Constitu--tion and as such it is not open to any exceptions. As indicated above, legal status of the Special Tribunal, constituted for N: W. F. P. Has not been controverted at the Bar. It has also been conceded that Mr. Gohar Ayub Khan (petitioner) is already facing trial before the Special Tribunal in all the said three cases. Under Article 3(B) of Article 199 of the Constitution all such applications pending before any High Court stood abated from the date of enforcement of such amendment. It would, therefore, be an exercise in futility to go into the merits of the case and examine whether or not, the speeches delivered by Mr. Gohar Ayub Khan fell within the ambit of the offences for which he is being tried in the Special Tribunal. It has now been provided in section 13 of the D. P. O. That a person sentenced by the Special Tribunal shall have a right of appeal to the High Court. The doubts as to the validity of section 13-A of the D.
P. O. Whereby the jurisdiction of the High Court is ousted in respect to certain matters mentioned therein, have now been set at rest through the insertion of clause 3-A in Article 199 of the Constitution.
16. We, therefore, find no merit in this petition. It is consequently dismissed. In view of the peculier circumstances of the case, we do not propose to make any order as to costs.