ZAKIUDDIN PAL, J.-Mr. Aamar Raza A. Khan, Advocate-General, Punjab, and Syed Iftikhar Ahmad, Deputy Attorney-General of Pakistan, both, have appeared at the request of the Court and rendered assistance at the preliminary stage.
2. Writ Petition No. 1205/79 was filed by Malik Ghulam Jilani, appellant herein, for a direction to respondent No. 4, General Muhammad Zia-ul-Haq, Chief of the Army Stall to refrain, as purported President of Pakistan, from passing any order' on the mercy petition filed by the appellant as a friend of Mr. Zulfiqar Ali Bhutto in regard to the latter's death sentence; to respondents 2 and 3, the Home Secretary, Government of the Punjab, and the Inspector-General of Prisons, Government of the Punjab, respectively, 'to forward the aforesaid mercy petition to respondent No. 7, the Secretary.
Ministry of Interior, Home Division, Government of Pakistan Islamabad; to respondent No. 7 restraining him from obtaining orders on the mercy petition from General Muhammad Zia-ul-Haq and directing him to obtain orders from Mr. Fazal Elahi Chaudhry (who has since relinquished his office as President of Pakistan, but according to the appellant still continues to be the President of Pakistan) on the mercy petition, with a further direction to withhold the petition for necessary consideration/orders by the competent President of Pakistan if respondent No. 5, Mr. Fazal Elahi Chaudhry is held by this Court to have ceased to hold the office of the President of Pakistan; to respondents 1, 2, 3, 6 and 7, the Province of Punjab, through the Chief Secretary, Government of the Punjab, the Home Secretary, Government of the Punjab, the Inspector-General of Prisons, Government of the Punjab, the Superintendent, District Jail, Rawalpindi and the Secretary, Ministry of Interior, Home Division, Government of Pakistan, Civil Secretariat, Islamabad, respectively, restraining them from executing the sentence of death awarded to Mr. Zulfiqar Ali Bhutto pending the determination of mercy petition by the competent President of Pakistan.
3. The writ petition was dismissed in limine by a learned Single Judge of this Court vide his judgment dated 19-3-1979 mainly on the ground that though the appellant has a right to file a petition for mercy for a friend, relative or in a rare case even for party man or stranger, but there his right ends and he is not entitled to pursue the matter further. He cannot on the strength of such a mercy petition, get a substantial right with regard to the lawful authority of the detaining authority or the pardoning authority to be examined in its full legal perspective. It was also held that the Superintendent Jail, who was to execute the sentence was not concerned with the de facto or de jute authority of the President; he was to see only that he received an order from the appropriate quarter through the hierarchy provided and prescribed in the Jail Manual. It was further held that the power of pardon, the grant, the abeyance or the refusal to grant it could not collaterally be challenged in the proceedings started after filing of the mercy petition, as the scope was entirely of a quo warranto proceeding.
4. The aforesaid writ petition, which has been dismissed by the learned Single Judge, was third in the series directed towards achieving the same end I e. Deferment of the sentence of death passed by the High Court and upheld by the Supreme Court against Mr. Zulfiqar Ali Bhutto in Nawab Muhammad Ahmad Khan's case. The first petition, Writ Petition No. 716,179 was dismissed in limine on 13-2-1979 and the second petition, Writ Petition No. 929/79 was disposed of on 28 2-1979 by the same learned Single Judge. While dismissing the present writ petition, it has been observed by the learned Judge that facts of this writ petition are very much similar to Writ Petition 929/79.
5. Mr. Aitaz Ahsan, learned counsel for the petitioner has raised the following contentions :
(a) The learned Single Judge has misinterpreted the scope of word "right" and has wrongly applied fallacious doctrine of superior Orders.
(b) It has been wrongly held by the learned Single Judge that assumption of office of the President by General Muhammad Zia-u1-Haq can only be challenged through a quo warranto proceeding and not otherwise. According to law, it can be challenged in collateral proceedings as held in Mr. Zulfiqar Ali Bhutto v. The State PLD 1978 SC40.
(c) Undue weight has been placed on prima facie de facto status of respondent No. 4 General Muhammad Zia-ul-Haq. The learned Single Judge, has, therefore, acted illegally in this regard, as respondent No. 4 is neither de jure nor legitimate authority for deciding mercy petition because he has usurped the Office of the President in violation of the Constitution.
(d) President's Order No. 13 of 19978 is illegal and void being contrary to the Constitution, legal necessity and public good. The Constitution of 1973 cannot be amended through such legislation.
(e) The assumption of Office of the President by respondent No. 4, General Muhammad Zia-ul-Haq is mala fide, in any case.
6. The aforesaid Order No. 13 of 1978, called the President's Succession Order, was issued on 15-9- 1978 by Mr. Fazal Elahi Chaudhary, the then President of Pakistan in pursuance of the Proclamation of the 5th day of July 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A.'s Order No. 1 /77) in exercise of all powers enabling him in that behalf. It was provided to have effect notwithstanding anything contained in the Constitution or any other law. Paragraph 3(t) of the Order provides that upon the office of the President becoming vacant by reason of death, physical or mental incapacity, resignation, or by reason of the incumbent of that office relinquishing charge of the office or for any other reason, before the election of a President under the Constitution, then the Chief Martial Law Administrator or such other person as may be designated by the Chief Martial Law Administrator shall be the President and shall perform all functions assigned to the President by or under the Constitution or by or under any law. Paragraph 4 thereof provides that if the Chief Martial Law Administrator is the President, then he shall hold the office until the President is elected in accordance with the Constitution. He may also, at any time, designate any other person to be the President; and if he does so, he shall cease to hold the office upon the person so designated entering upon the office. Sub-paragraph (2) of paragraph 4 provides that a person, other than the C. M. L. A. Who holds office of President under the said Order, shall, unless the C. M. L.
A. Otherwise directs, hold the office until a President is elected in accordance with the Constitution.
Paragraph 6 of the Order provides that if the person holding office of President immediately before the commencement of this Order resigns from his office or relinquishes charge of the office, he shall be entitled to utilize the period of leave and leave allowance in accordance with President's Salary, Allowances and Privileges Act, 1975.
6-A. It is not denied that Mr. Fazal Elahi Chaudhary, Ex-President of Pakistan, holding the office of President immediately before the commencement of the said Order submitted his resignation to General Muhammad Zia-ul-Haq, Chief Martial Law Administrator and at that time enjoying legislative as well as the powers of the Chief Executive, as held in Begum Nusrat Bhutto v. Chief of the Army Staff PLD1977SC657. It is also admitted that Mr. Fazal Elahi Chaudhary after relinquishing charge of President utilized the leave period and leave allowance to which he was entitled under the President's Salary and Privileges Act, 1975.
7. The Laws (Continuance in Force) Order, 1977 [C. M. L. A.'s] Order No. 1/77 was enforced on 5-7- 1977, when Martial Law was proclaimed in the country. Paragraph 2 of the Order lays down that notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, Pakistan shall, subject to this Order and any Order made by the President and any Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator, be governed as nearly as may be in accordance with the Constitution. Simultaneously General Muhammad Zia-ul- Haq as C. M. L. A. Issued proclamation to the effect that the Constitution of Pakistan shall remain in abeyance, National Assembly, Senate and the Provincial Assemblies would stand dissolved, the Prime Minister, Federal Ministers, Ministers of State, Advisors to the Prime Minister, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies, the Chairman and Deputy Chairman of the Senate the Provincial Governors, Provincial Chief Ministers and the Provincial Ministers would cease to hold office, the President of Pakistan would continue in office and the whole of Pakistan would come under Martial Law. The Supreme Court while dealing with the case of Begum Nusrat Bhutto held that the proclamation embodied and described in legal form, the extra- constitutional action, with the Chief of the Army Staff had taken on the ground of necessity. The circumstances under which the aforesaid proclamation was issued were dealt with in detail by the Supreme Court in that case. As a result thereof the proclamation was held to be valid. It was further held that the provisions of the Laws (Continuance in Force) Order showed that they were primarily designed to give effect to the purpose of the proclamation. It was held that this order was off- spring of necessity and as such the Superior Courts would continue to have power of judicial review notwithstanding anything to the contrary contained in the Order to test the validity of its provisions and any action taken thereunder in the light of the principles regulating the application of the law and doctrine of necessity after the Supreme Court held the proclamation to be valid. It meant that the action of the C. M. L. A. In dissolving the National Assembly and Senate, and all the Provincial Assemblies as well as the removal of the Prime Minister, Federal Ministers, Ministers of State, Speaker and Deputy Speaker of the National Assembly, Chairman and Deputy Chairman of the Senate etc. From their offices stood validated.
8. It has been argued while relying upon Articles 44, 47 and 49 of the Constitution of the Islamic Republic of Pakistan that since the country is to be ruled under the Constitution as much as possible, therefore, President's Order No. 13 of 1978 being contrary to the aforesaid provisions, the assumption of the office of President by General Muhammad Zia-ul-Haq is against law; and since he is not the legally appointed President of Pakistan, therefore, the mercy petition to be disposed of by the President under the Constitution cannot be disposed of by him; its disposal should be deferred till lawfully appointed President enters upon the Office.
According to Article 41 of the Constitution, President shall be elected by the members of the Parliament in joint sitting in accordance with the provisions of the. Second Schedule. He would hold office for a term of five years from the date he enters upon his office. Under clause (3) of Article 44, he can resign from his office by sending his resignation to the Speaker of the National Assembly. He can be removed on the ground of physical or mental incapacity or on a charge of violating the Constitution or gross misconduct by two Houses of Parliament. According to Article 49, if the office of President becomes vacant by reason of death, resignation or removal, the Chairman of the Senate or, if he is unable to perform the functions of the office of the President,' the Speaker of the National Assembly shall act as President until a President is elected in accordance with clause (3) of Article 41. Clause (2) of Article 49 provides that when the President by reason of his absence from Pakistan or any other cause is unable to perform his functions the Chairman of the Senate or if he too is absent or unable to perform the functions of the office of the President, the Speaker of the National Assembly shall perform the functions of President until the President returns to --- Pakistan or otherwise resumes his functions.
According to Article 45 of the Constitution, the President has the power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, Tribunal or other authority.
9. It has been argued that there was no legal necessity to issue President's Order No. 13 of 1978 enabling the C. M. L. A. Or any other person, as may be designated by him, to become President of Pakistan on the office of the President becoming vacant. It is contended that the procedure as laid down in Article 49 should have been followed, and since Senate cannot be dissolved under the Constitution, therefore, the Chairman of the same should have taken over as President of Pakistan after the office was relinquished by Mr. Fazal Elahi Chauhdary.
I am afraid, this contention has no force in the given circumstances. The proclamation dissolving the National Assembly,. The Senate and Provincial Assemblies and removing the Prime Minister, Federal Ministers. Ministers of State, Speaker and Dy. Speakar, National Assembly, Chairman and Deputy Chairman- of -the Senate etc. From their offices having been declared to be valid by the Supreme Court, the aforesaid representative offices no more exist and as such the Speaker and the Chairman are no more holding their respective offices. Further, according to Article 53 of the Constitution, the office of Speaker would become vacant if he resigns or otherwise ceases to be a member of the Assembly. The same provision has been made applicable to the Chairman of the Senate vide Article `61. The Speaker and Chairman being part and parcel of the National Assembly and the Senate, respectively, cannot hold their respective offices after the dissolution of both the houses. When both the house stand dissolved then the Speaker and the Chairman cannot be said to be still holding offices. According to the Constitution, they can hold office as long as they remain members of the respective houses and in the absences of that no such office can be held by them.
They have ceased to be members of the respective houses after their dissolution and as such they are no more holding their respective offices.
10. Therefore, in the given circumstances the aforesaid provisions of the Constitution cannot be implemented and there being no further provision in the Constitution to meet the situation arising on account of resignation of Mr. Fazal Elahi Chaudhary, Ex-President's Order No. 13 of 1978 wall enforced to fill in the vacuum. The Office of the President was very much recognized in the Laws (Continuance in Force) Order, 1977 and as such) it had to be assumed by some body. It could not remain vacant as the country was to be, subject to the Laws (Continuance in Force) Order,. 197/1 and any order to be made by the President and any Martial Law Regulation or Martial Law Order made by the C. M. L. A., governed, as nearly as may be, in accordance with the Constitution. The circumstances created on account of the resignation of Mr. Fazal Elahi Chaudhary necessitated issuance of President's Order No. 13 of 1978 otherwise there would have been great confusion in the country.
11. The validity of President's Order No. 13/78 is to be decided, as held by the Supreme Court in Begum Nusrat Bhutto's case in the light of the principles regulating application of law and doctrine of necessity. It has been held in that case that 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity, the President of Pakistan and the Superior Courts continue to function under the Constitution. The C. M. L. A. Having validly assumed power by means of extra-Constitutional step in the interest of the State and in the welfare of the people is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by judicial authorities as falling within the scope of the law of necessity, namely
(a) all acts or legislative measures which are in accordance with or could have been made under 1973 Constitution, including the power to amend it ;
(b) all acts which tend to advance or promote the good of the people ;
(c) all acts required to be done for the ordinary orderly running of the State ; and
(d) all such measures as would establish or lead to the establishment of the declared objectives of the promulgation of Martial Law, namely the restoration of law and order and normalcy in the country and the early possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution.
It has also been held that the aforesaid acts or any of them may be performed or carried out by means of President's Orders; Ordinances, Martial Law Regulations or Orders, as the occasion may require, and the. Superior Courts would continue to have power of judicial review to Judge the validity of any act or action of the Martial Law authorities, if challenged, in the light of the principles underlying the principle of law of necessity, as mentioned above principles Their powers under Article 199 of the Constitution would remain available to their full extent and may be exercised as herebefore notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, President's Order or Ordinance.
12. The Supreme Courts while deciding the case of Mr. Zulfiqar Ali Bhutto further elucidated the aforesaid conditions which should be taken into consideration by the superior Courts while deciding the actions of the Martial Law regime in the light of State necessity. It has been held that it must be clearly understood that in judging whether an action taken by the President or the C. M. L.
A. Is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned. Nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories incorporated by the Supreme Court in Begum Nusrat Bhutto's case while spelling out the powers which may be exercised by the C. M. L. A. Or the President of Pakistan acting on his advice. It has been further held that in order to find out as to what is reasonable or not in this context, must be p; judged by the standards of an ordinary ,prudent and reasonable citizen and will depend on the prevailing circumstances and the object with which the action has been taken. Viewing in this perspective, the Supreme Court held that President's (Post Proclamation) Orders 3, 4 and 5, which were ' challenged before the Supreme Court, clearly fell within the objectives for which the Martial Law was imposed in the country on the 5th of July 1977, to ensure restoration of democratic institutions under the Constitution.
Their Lordships further held that as the Constitution, unfortunately, did not contain any provision for meeting the unprecedented situation which was being considered, the President on the advice of the C. M. L. A. Was clearly not only competent, but also under a solemn obligation to take steps to ensure fresh elections. It was held that in these circumstances it was not for the Court to substitute its own opinion as to the arrangements necessary to be made in that behalf, all that the Court was to examine was whether the contemplated measures reasonably fell within the objectives in question. It was held that the aforeasid three President's Orders, subject-matter of the judgment in that case, directly intended to achieve one of the most important objectives of the imposition of Martial Law and as such their validity could not be questioned on the ground that they were not necessary.
It may be mentioned that aforesaid President's Orders 3, 4 and 5 of 1977, related to the Oath of Office of the Chief Election Commissioner, Election Commission and Elections of Houses of Parliament and Provincial Assemblies, respectively.
The fact that the General Elections, to be held in October 1977, were postponed was noticed in the aforesaid judgment passed by the Supreme Court in Mr. Zulfiqar Ali Bhutto's case. The arrangements made by the President as well as the Chief Martial Law Administrator by enforcing Post Proclamation President's Orders 3, 4 and 5, were held to be falling within the objectives for which Martial Law was imposed President General Muhammad Zia-ul-Haq has now fixed 17-11-1979 for holding of General Elections. The E present measure in the form of President's Order No. 13/78 is an ad hoe one. It is an extra-Constitutional step in order to enable the Martial Law regime to achieve the objectives already declared by it.
13. According to President's Order No. 13/78 if the C. M. L. A. Assumes the office of the President, then he shall hold this office until a President is elected in accordance with the Constitution. Similar is the case with a person who is designated by the C. M. L. A. To hold this office. The fact that General Elections are going to be held in November 1979 and the power will be transferred to the elected representatives, who in turn will elect President of the country in accordance with the Constitution, cannot be ignored. General Muhammad Zia-ul-Haq will relinquish the office of the President as soon as the new President is elected in accordance with the Constitution after the General Elections. The extra Constitutional step in the form of President's Order 13/78 has been taken in the public p interest as well as for the purpose of running the country in an orderly manner. It undoubtedly tends to advance and promote the good of the people so as to achieve one of the objects of Martial Law, i.e. Holding of General Elections as early as possible.
As mentioned above, the Supreme Court has authorised the present regime to carry out the aforesaid acts or any one of them by means of Presidential Orders, Ordinances, Martial Law Regulations or Orders, as e occasion may require. Mr. Fazal Elahi Chaudhary, Ex-President of Pakistan was still the validly elected President, as admitted by the learned counsel, when President's Order 13/78 was issued by him. As such issuance of President Order 13/78 is fully justified in the given circumstances.
14. General Muhammad Zia-ul-Haq's position as C. M. L. A. Having imposed Martial Law in the country, as discussed above, has been fully validated by the Supreme Court in Begum Nusrat Bhutto's case. It has been held that he enjoys the legislative as well as powers of the ChiefExecutive.
It means that he is performing his duties being the Chief Executive, as Prime Minister' of the country and is performing functions of Legislatur as well. When he enjoys the legislative powers, it means that he also holds the power of the Speaker of the National Assembly. In the circumstances, when Mr. Fazal Elahi thaudbary submitted his resignation to him, it was submitted to a valid authority competent to accept the same. The learned Advocate-General has submitted, and this submission has not been denied by the learned counsel for the petitioner, that Mr. Fazal Elahi Chaudhary was requested to continue as President, but he insisted on relinquishing the charge of his office. Since the legislative as well as the power of the Chief Executive had combined in General Muhammad Zia-ul-Haq being the C. M. L. A. As held by the Supreme Court, therefore, Mr. Fazal Elahi Chaubdary's resignation was rightly accepted and he was validly relieved of his duties as President.
15. As a consequence of the above discussion it is held that Mr. Fazal Elahi Chauhdary has ceased to be President of Pakistan and General Muhammad Zia-ul-Haq, in addition to his status as C. M. L.
A. Has also validly assumed the office of the President of the country. As such, question of restraining him from deciding the mercy petition submitted by the petitioner does not arise and the prayer made in this behalf is hereby refused to be granted.
16. According to Article 45 of the Constitution, the President is authorised to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, Tribunal or other authority. Mercy, petition in that behalf can be directly submitted to him. Rule 104 of Pakistan Prisons Rules provides that a condemned prisoner shall be informed by the Superintendent, Jail about the dismissal of the appeal or application fur Special Leave to Appeal by the Supreme Court, if any, and if the condemned prisoner so desires and submits a petition for mercy, it shall be submitted by him within seven days of the date of such intimation. . In case the Provincial Government decides to commute the sentence on such petition of a condemned prisoner, petition addressed to the President then shall be withheld. Sub-rule (5) of the said rule provides that the Provincial Government shall withhold the petition submitted by a condemned prisoner, when the petition containing similar prayer has already been submitted to the President. The petitioner in that case shall be informed of the fact of withholding the petition and of the reason there of.
In the present case, first mercy petition was submitted on 12-2-1979 by the appellant to the President while second. Petition to the same authority was submitted on 2-2-1979 through the Chief Secretary, Government of the Punjab. The petitioner submitted his second mercy petition to the Provincial Government on 2-3-1979. It'means that two mercy petitions containing similar grounds have already been submitted to the President while the second petition containing, again, similar grounds has been submitted to the prvincial Government. As mentioned above, under clause (5) of rule 104, second paition can ba withheld by the Provincial Government as it contains similar prayers as already made in his two mercy petitions addressed to thr. President. As such, respondents 1 and 2, the Province of the Punjab, through the Chief Secretary and the Home Secretary, Punjab Government cannot be directed to forward the mercy petition, filed by the petitioner. To respondent No. 7, Secretary, Ministry of Interior, Home Division, Government of Pakistan. Since respondent No. 4, General l Zia-ul-.Haq has been held to be validly appointed President of Pakistan, therefore, respondent No. 7 cannot be refrained from obtaining the orders of respondent No. 4 on the mercy petition filed by the appellant. The prayer made for direction to obtain such orders from respondent No. 5. Mr. Fazal Elahi Chaudhary~thus becomes redundant.
Respondent No. 7, in the given circumstances, cannot be directed to withhold the mercy petition submitted by the petitioner and not to submit the same to respondent No. 4.
Respondents 1, 2, 3, 6 and 7 cannot, in the above circumstances, be restrained from executing the death sentence awarded to Mr. Zulfiqar Ali Bhutto.
17. The petitioner has sued General Muhammad Zia-ul-Haq as Chief of the Army Staff in spite of the fact that his position as C. M. L. A. Has been fully validated by the Supreme Court of Pakistan. This is a fact g which should be seriously taken notice of. The petitioner has no locus standi to ignore the status of respondent No. 4 as C. M. L. A. Validated by the Supreme Court of Pakistan having lawfully assumed power as such under the State necessity. It has also been held by the Supreme Court, as mentioned above, that Executive and Legislative powers now combine in him. He as C. M. L. A.
Enjoys the status of Prime Minister a well as of Legislature. According to Article 248 of the Constitution, the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, a Chief Minister and the Provincial Ministers have been held immun from the process of the Court so far as their exercise of powers and[, performance of their functions as such is concerned General Muhammad Zia-ul-Haq has been held to have assumed the power of President in a lawful manner.
Even if he had not assumed such power in that manner, the fact that his position as C. M. L. A. Has been fully validated and he enjoys all the powers of a Prime Minister in that capacity is sufficient to show that he stands immune from the process of the Court under Article 248 of the Constitution, as far as his exercise of powers and performance of functions as such is concerned. Such position obtains right from the Government of India Act, 1935 to 1973 Constitution. Section 306 of Act of 1935 conferred immunity on the Governor--General and the Governors from the process of the Court.
Article 213 of the 1956 Constitution conferred such immunity on the President and the Governors.
Similarly, Articles 116 and 117 of the 1962 Constitution conferred such immunity on the President and the Governors. Article 248 of the 1913 Constitution, as mentioned above, confers such immunity on the President, Governors, Prime Minister, Federal Ministers etc. Etc. Further, paragraph 2 of Laws (Continuance in Force) Order, 1971 provides that Supreme Court or a High Court has no power to make any order of the' nature mentioned in Article 199 of the Constitution against the C. M. L. A.IM or a Martial Law Administrator. As mentioned above, the Law `s (Continuance in Force) Order, 1977 stands fully validated by the Supreme Court.
Apart from that, General Muhammad Zia-ul-Haq at present holds the status of President of Pakistan under President's Order No. 13 of 1978, which has been held to have been issued validly under the law of State necessity. General Muhammad Zia-ul-Haq is, therefore, immune from the process of this Court, so far as his exercise of powers and performance. Of function as such is concerned. This point was considered by a Division Bench of this Court in Writ Petition No.5258/78, filed by Miss Benazir Bhutto against the Chief of the Army Staff: The Division Bench (of which I was a member) passed order for substitution of the Federation of Pakistan for C. M. L. A.
19. In the present case, the I. C. A. Suffers from misjoinder and non joinder of parties and being incompetent can be thrown out on this ground alone. The appellant should have impleaded Federation of Pakistan in place of Chief of Army Staff (and C: L M. A). Since in spite of having been pointed out during the arguments the appellant has failed to do the needful in this behalf, therefore, the appeal is not maintainable being! Incompetent.
20. I have not dealt with many of the contentions raised by the learned counsel for the appellant, the learned Advocate-General and the learned Deputy Attorney-General of Pakistan, as they have been dealt with in detail by my learned brother Aftab Hussain, Judge I fully agree with the findings given in relation thereto.
21. As a result of the above discussion, the appeal stands dismissed in limine.
AFTAB HUSSAIN, J.-Zulfiqar Ali Bhutto along with four others was convicted by a Full Bench of the High Court under section 302 read with sections 301, 109. 111, 307/109 and 120-B/115, P. P. C. For the murder of Nawab Muhammad Ahmad Khan father of Mr. Ahmad Raza Qasuri and was sentenced to death under sections 302/ 301/109/111 and to rigorous imprisonment on other counts: In appeal these convictions and sentences were upheld, except to the extent of section 301, P. P. C. By the Supreme Court by a judgment announced on 6th February, 1979.
2. On the 11th February, 1979, the petitioner/appellant instituted Writ Petition No. 716 of 1979 (Malik Ghulam Jilani v., The State etc.) praying for reference to the Shariat Bench set up under President's Order III of 1979 to settle the question of vires of section 345 (7), Cr. P. C. Read with entry in Column 6 of the Second Schedule to the Criminal Procedure Code against section 302, P. P. C. And the Punjab Jail Manual, and for staying the execution of the sentence passed on Zulfiqar Ali Bhutto. This petition was based on the assertion that Ahmad Raza Qasuri was willing to forego the charge of murder of his father and the other heirs might be willing to accept dayet (blood money).
3. This petition was dismissed in limine on the 13th February, 1979. An appeal against that order (I. C.
A. No. 372 of 1979) was also dismissed on the 6th March, 1979.
4. Claiming to be a friend of Zulfiqar Ali Bhutto, the- petitioner/ appellant submitted a mercy petition telegraphically purporting to be under paragraph 103 (ix) of the Punjab Jail Manual on the 12th February, 1979, to 'General Muhammad Zia-ul-Haq, the President of Pakistan C. M. L. A.'s Secretariat, Rawalpindi, for grant of pardon to the convict who formerly held the office of Prime Minister of Pakistan. (A copy of. This petition is Annexure 'E'). He then instituted Writ Petition No. 929 of 1979, in which he impleaded the President by his personal name and military rank i.e. "General Muhammad Zia-ul-Haq. Chief of Army Staff. C. M. L. A.'s Secretariat, Rawalpindi". He prayed that the said respondent be restrained from considering or rejecting the petition and for stay of the execution of the death sentence upon Zulfiqar Ali Bhutto pending the final decision of the petition He also prayed that Zulfiqar Ali Bhutto may not be removed or permitted to be removed to any place beyond the jurisdiction of the High Court. The sum and substance of the contentions of this petition was that respondent No. 1 was not duly appointed President of Pakistan and his appointment was not covered by the principles laid down in the case of Begum Nusrat Bhutto v.
Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657. President's Order XIII of 1978 known as President's Succession Order which provided for the appointment of the Chief Martial Law Administrator or any person designed by him as President of Pakistan in case of the office of President being vacant inter alga on account of relinquishment of the office by Ch. Fazal Elahi, was also challenged.
5. This petition was dismissed in limine on 28th February, 1979, on the ground that the petitioner had himself invited jurisdiction of respondent No. 1 as President of Pakistan, he could not be allowed to blow hot and cold, approbate and reprobate, recognize and repudiate, invite and deny, and to approach this Court in the Constitutional jurisdiction for extending him the benefit of an equitable relief. It was further held that the Court's decision takes effect in spite of the existence of Mercy Powers. Article 199 on such a mercy petition cannot be utilized to nullify the warrant, if any, issued by the High Court with regard to carrying out of sentence "consequent upon the decision of the Supreme Court", since under Article 190 all executive and judicial authorities throughout Pakistan are required to act in aid of the Supreme Court. Regarding the power of pardon it was held that "the exercise of the power lies in the absolute and uncontrolled discretion of the officer in whom it is vested."
Reliance was placed for this proposition on Mir Zaman v. State PLD 1969 Lah. 71 and Civil Petition No. 182 of 1978 (Muhammad Sadiq v. C. M. L. A.), on the strength of paragraph 497, page 932 of American Jurisprudence, 2nd Vol. (1963 Edn.) it was observed that "In granting suitable relief, the Court does not necessarily adjudicate the title de jure, but merely the right de facto."
It was further held that- "the tests applied for determining de facto officership, a g. (a) existence of de jure office, (b) color of authority or- title, (c) physical possession, (d) general public recognition and reputation, (e) existence of revolutionary Government are all prima facie satisfied."
6. In view of this order another mercy petition (Annexure'A/1'), dated 2nd March, 1979, was sent by the petitioner to "The President of Pakistan, Rawalpindi" through the Chief Secretary and the Home Secretary, Government of the Punjab, Lahore. This was followed by another application to the Chief Secretary and the Home Secretary, Government of Punjab, Lahore, stating that General Muhammad Zia-ul-Haq was not competent to hold the Office of President or exercise any power vested in him at all when his appointment was not sanctioned Ivy the principle of necessity as propounded by the Supreme Court of Pakistan and he was also disqualified to hold such office. It was stated that it was incumbent upon the Chief Secretary and the Home Secretary to await the decision on this mercy petition by the Constitutional President of Pakistan and not to act in pursuance and in consequence of any orders passed by General Muhammad Zia-ul-Haq; Chief of Army Staff. A warning was given that the execution of sentence without due process of law will invite criminal liability upon all persons as are held responsible for it.
7. _ The petitioner submitted another Writ Petition No. 1205 of 1979 on the. Same grounds and .Mainly for the- same relief, he, however, impleaded Ch. Fazal Elahi, Ex-President of Pakistan, as respondent No. 5 on the ground that he still holds the office of the President of Pakistan. For this reason he prayed that the Secretary, Ministry of Interior, Home Division, Govern--ment of Pakistan, be directed to obtain the orders of Mr. Fazal Elahi Chaudbary, . On the mercy petition. Despite this, in his address as respondent .No. 5, Mr. Fazal Elabi Cbaudhary, was shown as the former President of Pakistan'.
8. This petition was also dismissed in limine on the ground that though the petitioner had a right to file a petition for mercy for a friend, relative or in a rare case even for a party man or stranger but he could not, on the strength of s,,;ch a mercy petition, get a substantial cause with regard to the lawful authority of the detaining authority or the pardoning authority to be examined in its full legal perspective. Since the Superintendent of Jail was also impleaded as a party and it was prayed that be might be directed to refrain from executing the sentence of death, it was held that he was not concerned with the de facto or de jure authority of the President, be had to act upon the orders received from the appropriate quarters through the hierarchy provided and prescribed in the Jail Manual. Reference was also made to the judgment in Nasirullah Khan Babar v. Chief of Army Staff, G. H. Q., Raxalpindi and another (PLD 1979 Pesb. 23) in which the authority of the President to succeed respondent No. 5 was recognized.
9. Hence this Intro-Court Appeal.
10. Detailed arguments of the learned counsel for the petitioner have been heard. Hearing has also been given to the Advocate-General, Punjab and the Deputy Attorney-General.
11. This petition is clearly barred by res judicata, since a similar question had been adjudicated upon by the High Court in Writ Petition No. 929 of 1979. It is now established law that principles of res judicata do apply to proceedings in writ jurisdiction. Muhammad Yaqub v. The Chief Settlement Commissioner (PLD 1965 SC 254), Mdnaging Committee Masjid Muhajrin v. Mst. Zaina Bibi (1974 SCMR 230) and Muhammad 4jmal v. Muhammad Shaffaat (PLD 1976 Lah. 396).
12. The learned counsel argued that that petition was decided only on the ground of estoppel as the petitioner had invited the jurisdiction of "General Muhammad Zia-ul-Haq, President of Pakistan and had thus conceded that he was holding the Office of President.
13. The argument is without force. 1 have already reproduced the salient points of that judgment which have taken into consideration the power of de facto holders of office, the sanctity given to their acts, the conditions on which such authority can be conferred and the finding that all those conditions were satis!Ied in the case of the President. If there are certain points which though could be urged in that petition but were no taken or urged there, as the learned counsel would have me believe, the second petition would be barred by the principle of constructive res judicata, as held in Muhammad Yaqub v. Chief Settlement Commissioner.
14. On the first day of hearing an objection was ,voiced by us about the maintainability of this petition on the grounds narrated above. On the closing day of arguments in this appeal, the learned counsel submitted that now an appeal has been filed against the order passed in Writ Petition No. 929 of 1979 and as such that order is no longer res judicata since institu--tion of appeal destroys the finality of the order. But this is not helpful to the appellant. The law does not contemplate filing of two suits based on the same cause of action by the same party against virtually the same defendant. If, however, a portion of the claim in respect of the same cause of action is not included in the first suit, the second suit would be barred by Order 11 , rule 2, C. f. C. This provision.Would apply by virtue of section 141, C. P. C. To proceedings in writ jurisdiction also.
15. Another fatal objection taken by the Deputy Attorney-General is P that the Chief Martial Law Administrator and President both are immune from legal process under Article 248 of the Constitution read with the Proclamation . Dated the 5th July, 1977 and the C. M. L. A. Order No. 1 of 1977 I e. The Laws (Continuance in Force) Order, 1977. The petition could have been filed against `Pakistan' as envisaged in Article 174 of the Constitution, and not against General Muhammad Zia- ul-Haq. As held in Begum Nusrat Bhutto v. Chief of Army Staff the executive and the legislative power which means the power of the Prime Minister, the Chie Executive and the Parliaments is combined and vested in the Chief Martial Law Administrator. The Chief Martial Law Administrator, having validly assumed power by means of an extra-Constitutional step, in the interest of the State and for the welfare of the people is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by judicial authorities as falling within the scope of the law of necessity, namely (inter alia).
(a) all actswhich are in accordance with, or could have been made under the 1973 Constitution.
The Chief Martial Law Authority having stepped into the shoes of the Prime Minister is, in my view, entitled to the same immunity from legallQ process, as granted by Article 24 of the Constitution.
The petition should have been filed against `Pakistan'.
16. A third objection which was raised by the Advocate-General and is much more fatal is that having accepted the Chief Martial Law Adminis--trator as the President in Writ Petition No. 716 of 1979 and in the Mercy Petition dated the 12th February, 1979, the appellant cannot turn back and challenge his appointment to the office of the President. In Writ Petition R No. 716 of 1979 the appellant based .His case upon President's Order III of 1979 known as the Constitution (Amendment) Order, 1979 (About reference of matters to Shariat Benches) promulgated under authority of thePresident on the 10th February, 1979. It is implied in that writ petition tbat the appointment of the President as such and his authority to even amend the Constitution was acknowledged by the appellant. Similarly, in the telegraphic application dated the 12th February, 079, which he sent to the President by name he admitted him to be the holder of that office. He cannot now be allowed to deny what he had already admitted.
17. The learned counsel, however, argued on the basis of the well established principle that there is no estoppel against law. That may be so but in cases where equitable relief can be granted and it is within the discretion of the Court to grant or to refuse to grant such relief, the previous conduct of the suppliant is of prime importance and notwithstanding) the principle against estoppel relied upon by the counsel the Court can refuse to grant the relief. This argument is not, therefore, tenable. The appeal could be dismissed on these points but I would like to consider the points raised by the learned counsel for the appellant against the impugned order. He formulated the following points :
(1) The learned Single Judge has misinterpreted the scope of the word `right' in so far as he has held that the petitioner cannot challenge the accession to the office of the President in a petition where his only right was to apply for pardon.
(2) It is incorrect that the petitioner cannot challenge the appointment of the President in collateral proceedings and for that purpose his only remedy was in quo warranto.
(3) As regards the Superintendent Jail, the learned Single Judge has applied fallacious doctrine of superior orders.
(4) The respondent was neither de jure nor legitimate or legalisable de facto authority.
(5) The Constitutional provisions regarding the appointment of the President could not be amended by President's Order XIII of 1978.
(6) The President's Order XIII of 1978 suffers from excessive delegation. The Senate being an indissoluble body and its dissolution not being validated by the Supreme Court of Pakistan in case of relinquishment of the Office by Ch. Fazal Elahi, the Chairman of the Senate could take over as President. In any case, the Chief Martial Law Administrator could appoint another person without disturbing the quality of the office of Prime Minister and President.
(7) In the event of vacuum in the office of President the power of pardon which is sought by the petitioner can be exercised by the people of Pakistan.
18. On the question of locus standi the learned counsel read Rule No. 104 of the President's Rules and submitted that since the petitioner, as a friend, has a right to file a mercy petition and that mercy petition in view of clause (viii) of the Rule is to be treated as a petition submitted by the prisoner or analogous to such petition, he has a right to get the case decided in accordance with law which also includes the principle that it should be decided by a competent authority.
19. But the real point is whether the petitioner without taking resort to quo warranto as provided under Article 199 (1) (b) (iii) can challenge the appointment of the President collaterally. If it is once held that he can do so, the finding against the locus standi of the petitioner may have to be negatived.
20. The case which on this point is fully applicable is Farzand Ali v. Province of West Pakistan PLD1970SC98. In that case also there was no direct challenge to the right of certain persons to be Members of the Assembly ; only a collateral attack was launched upon their right to participate in the proceedings of the National Assembly for passing the impugned Constitutional Amendments.
In that connection it was observed that- "There is, however, yet another principle which can be invoked in aid for holding that in such collateral proceedings the acts of de facto members cannot be invalidated but must be treated as being equivalent to or as good as the acts of de jure members." History of this principle was then traced as under : "This principle was first enunciated in the case of Edwin Ward Scadding v. Louis Lorant 10 E R 164 where the House of Lords after consulting all the Judges came to the conclusion that a rate for the relief of the poor which was lawfully made in other respects, could not be rendered invalid by the circumstances that some of the vestrymen who concurred in making it, were vestrymen only de facto and not de jure. Lord Chancellor St. Leonards enunciated the principle thus : 'With regard to the competence of the vestrymen. Who were vestrymen de facto but no vestrymen de jure, to make the rate, your Lordships will see at once that importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the Office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public Officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.
I think, therefore, that the principle laid down by the learned Judges, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office."
In the case of the Office of a Judge the interior Supreme Court in Re : Toronto R. Co. And City of Toronto 46 D L R 547, after revolving a large number of decisions both American and English, came to the conclusion "That it is not open to attack, in a collateral proceeding, the status of de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information."
Colley in his book on Constitutional Limitations, 8th Edn., Vol. 2, p. 1357 says as follows : 'No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. 'this is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.
An officer de facto is defined by Colley in his book on Constitutional Limitations, Vol. 2, page 1355 as `one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiscence, though having no right in fact'. An intruder is defined in the same book at p. 1357 as 'one who attempts to perform the duties of an office without authority of law and without the support of public acquiscence.
A modern author, Amnon Rubinstein in his book on Jurisdiction and Illegality, at p. 204 et seq opines that this principle has been evolved purely upon considerations of public policy and, as such, collateral proceedings have in this context invariably been given a particularly broad meaning so as to include almost every proceeding which does not seek to remove the Judge or Officer concerned, including any attack upon the decision itself."
21. It was argued on these principles that Third, Fourth and Sixth Constitutional Amendments were unassailable because the allegedly disqualified respondents had acted as de facto Members, under the bona fide belief that they were entitled to so act had at least a fair colour of title. It was held that there was no force in this contention and since there was no direct attack upon their rights to continue as members, their acts could not be invalidated merely because they could have been found in proper proceedings under Article 98 (2) (b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights.
22. The learned counsel, however, submitted that in another case Abrar Hussain v. Government of Pakistan and another (PLD1976SC315) a different view was taken. It is unnecessary to give details of that case since the matter was considered in Zulfiqar Ali Bhutto v. The State (PLD1978SC40) in which the appointment of Mr. Justice Mushtaq Hussain as Acting Chief Justice of the lahore High Court was challenged. A preliminary objection was tams: m the case by the learned Attorney-General that the appointment of the Acting Chief Justice and his continuing as such after his appointment as Chief Election Commissioner cannot be assailed in collateral proceedings arising out of an order made by the Full Bench in an application for cancellation of bail of Zulfiqar Ali Bhutto. He relied upon Parameswa ran Pillai Bhaskaran Pillal v. State Prosecutor (AIR 1951 Trav.-Co 45) and Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98). It was observed that while the cases referred to by the learned Attorney--General do indeed support the objection raised by him, but this Court was equally divided on this question when deciding Abrar Hasan v. Government of Pakistan. Two of the Judges constituting the Bench took the view that in view of the definition of the term person as contained in Article 199 of the Constitution a writ of quo warrantor did not lie against a Judge of the High Court, whereas the other two members of the Bench took a contrary view. In the opinion of the former it was possible to bring under challenge a judgment delivered by a Judge of a superior Court on the ground that he was not qualified to hold the office or that the High Court was not properly constituted. In other words, the validity of the appointment could be assailed in such collateral proceedings, though not by way of quo warranto. In view of this difference of opinion in the latest judgment of this Court, and also for the reason that it was necessary in the public interest, to give an authoritative pronouncement as to the true meaning and scope of Article 216 of the Constitution in relation to the appointment of the Chief Election Commissioner made under the relevant Post Proclamation Order issued by by the President to make arrangements for the forthcoming elections, we decided to hear detailed arguments on the merits of the contentions raised on behalf of the appellant. In the circumstances, the learned Attorney--General agreed not to press his preliminary objections any further and stated that he would also prefer a decision on the merits.
23. Their Lordships did not disagree with Farzand Ali's case. They proceeded to decide the matter on merits to give an authoritative pronounce--ment as to the true meaning and scope of Article 216 of the Constitution. Neither in that case nor in the case of Abrar Hussain the dictum laid down in Farzand All's case was reversed or even modified. In this Cou Farzand All's case is, therefore, an authority for so long as the view in the case is not reversed or modified, we are bound by it. There is, therefore, no doubt that the finding that the petitioner could not challenge by a side wind or in collateral proceedings the appointment of the President I T unexceptionable.
24. As noticed, there are observations in this authority about the ,de facto doctrine originating from the doctrine of necessity to bring about regularity and prevent confusion in the conduct of the public business and promote security of actions of a de facto holder of office. The argument about the scope of superior orders is met by these observations since a different view would create chaos. The learned counsel, however, referred to the observations of the Full Bench in the State v.
Zulfiqar Ali Bhutto (PLD 1978 Lah. 523) in which there are observations, in paragraph 599, that the members of F. S. F. Were not bound by the illegal superior orders of the Prime Minister. But this authority is clearly distinguishable. Here it is not a case o illegal orders but of the competence of the President. It is a case of challeng not to the orders but to the authority of the person passing the order or validity of the appointment of that Authority though it is not denied that U he is a de facto President whose orders on Mercy Petition as seen in case of Farzand Ali, would bind the Superintendent and all other officers. I agree with the finding that the Superintendent of Jail is bound by the orders received from the hierarchy referred to in rule 104 of the Prison Rules.
25. All other formulations in one way or the other really throw a challenge on President's Order 13 providing for succession to the office of the President. It was conceded that the President's Order 13 of 1978 was promulgated to provide for the appointment of the Chief Martial La Administrator or his nominee as the President of Pakistan in case o relinquishment of office by Mr. Fazal Elahi Chaudhary or his inability to V perform the duties of his office. It was conceded that Mr. Fazal Elabi Chaudhary was the signatory to President's order 13 and that he had resigned from his office thereafter. It was also not denied that the Chief Martial Law Administrator had taken the rein of office after the voluntary relinquish--ment by the Ex-President.
26. The first argument of the learned counsel was that President's Order 13 makes a departure from the constitutional provisions providing for appointment of the President. Article 41 provides for his election for full tenure and Article 49 provides for filling up the vacancy in the office of the President caused by his death, resignation or removal on ad hoc basis, till election. In the circumstances of the office of President being vacant by death, resignation or removal, it is provided that the Chairman of the Senate and in his absence the Speaker of the National Assembly shall perform the functions of the President till a new President is elected in the manner provided by Article 41.
27. It was conceded that the Speaker of the National Assembly is no longer holding office after the dissolution of that Assembly. But it was argued that the Senate being an indissoluble body whose dissolution by the proclamation dated the 5th July, 1979, had not been validated specifically by the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff and another still exists and its Chairman can act as President. Since Mr. Habib Ullah Khan, the Chairman of the Senate has also expired the learned counsel submitted that the Senate can elect a Chairman who can take over as President of Pakistan.
28. The basis of the argument of the learned counsel that the dissolution of the Senate was not approved in the case of Begum Nusrat Bhutto is that their Lordships of the Supreme Court had referred to the dissolution of the Federal and the Provincial Assemblies and not the Senate. But the argument is entirely misconceived and is based upon a misreading of the above w judgment of the Supreme Court. According to the Constitution the Parliament, consists of two Houses known as the Natitional Assembly and the Senate (Article 50). The expression "Federal Assemblies" is foreign to the Constitution. Clearly, therefore, the expression has been used to denote both the bodies which are Federal in character, viz. The National Assembly as well as the Senate. It is worth noting that by the proclamation dated the' 5th July, 1977, the legislative bodies, I.e. The National Assembly, the Senate and the Provincial Assemblies stood dissolved. After reproducing the proclamation it was observed at page 719 in the case of Begum Nusrat Bhutto that- "It will be seen that the Proclamation embodies and describes in legal form, the extra- Constitutional action which the Chief of the Army Stag has taken on the ground of necessity. The proaamation must, there--fore, be held valid for the same reason ; in fact, the entire controversy dealt with in the precedding pages has concerned this Proclamation and nothing else."
29. The validity gives to the Proclamation signifies that the Supreme Court had validated the dissolution of the Senate also.
30. According to the Constitution, the Bill, whether ordinary or amending the Constitution, generally becomes law only after successfully passing through the National Assembly as well as the Senate.
It was held in the case referred to above that the Chief Martial Law Administrator is, entitled to promulgate all legislative measures which could have been made under the 1973 Constitution including the power to amend it. The Chief Martial Law Administrator, therefore, combines the legislative functions of the National Assembly as well as the Senate. It would not, therefore, be correct to say that the Supreme Court ever intended to keep the Senate alive. If it had been so, the legislative functions of the Chief Martial Law Administrator would have been subject to scrutiny in the meetings of the Senate also.
31. The argument that since a person cannot constitutionally hold the two offices-one of the President and the other of the Prime Minister-it follows that the Chief Martial Law Administrator cannot hold the office o the President, is equally without force in view of the circumstance prevailing in the country when recourse had to be taken to extra-Constitutional remedies. Such instances are not lacking. For example, one instance is that though according to the Constitution the executive and the Legislature are two different entitles and the Legislature consists of sev:ral hundreds of elected Representatives, but in view of the special circumstances the Chief Martial Law Administrator is the repository not only of the office of the Prime Minister but also enjoys Legislative authority. The executive and the legislative fun.-tions are. Therefore, merged in one personality.
Another instance is the appointment of the Acting Chief Justice of the Lahore High Court as the Chief Election Commissioner which according to the Constitution could not be held by the same person. Zulfiqar Alt Bhutto v. The State (PLD 1979 SC 40). In this view of the matter there is no harm if the Chief Martial Law Administrator also holds the office of the President of Pakistan.
32. In fact, the Chief Martial Law Administrator is a proper person to hold such an office even if the Constitution is taken into consideration. As stated above, under Article 49 (3) of the Constitution, the Chairman of the Senate or alternatively the Speaker of the National Assembly could hold the office of the President as a stopgap arrangement. The Chief Martial Law Administrator admittedly is invested with the power of the Legislature. He is, therefore, the successor of the National Assembly as well as the Senate and of all officers of those bodies including the Chairman of the Senate on one hand and the Speakers of the National Assembly on the other. In the absen of the Chairman and the Speaker he is the only person having the right t hold the office of the President after the same was vacated by Mr. Fazal Ellahi Chaudhary.
33. It was argued that the President's resignation not having been delivered to the Speaker of the National Assembly as required by Article 44 (3) was of no force and as such Mr. Fazal Elahi Chaudhary held the office. If it is so, I wonder why the petitioner did not submit his application dated 12th February, 1979, or at least the subse4uent one to Mr. Fazal Ellahi Chaudhary. The argument however has no legs to stand upon. If this argument is allowed to prevail it would mean that in the absence of the Speaker, the President will not be able to relinquish his office or will be forced to continue against his will when on general principle the resignation automatically takes effect from the time it is given A. K. B Fazlul Quader Chaudhary v. Shah Nawaz (PLD 1966 SC 105).
This is based on the e principle that no unwilling person can be forced to carry on the duties of his office. But in the present case once it is held that the Chief Martial Law Administrator is a substitute for the National Assembly of which the Speake was a part, it would follow that resignation given to him is as good as given to the Speaker.
34. The position in the present case is that there are no electeRepresentatives who could elect the President nor is there any Chairman of the Senate or Speaker of the National Assembly to discharge the function of the President who was not in:lined to continue in office. A situation was, C therefore, created when a new formula had to be evolved for filing the vacancy on ad hoc basis.
The matter was, therefore, within the scope of the doctrine of necessity as enunciated by their Lordships of the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff and another. It was held in that case (pages 721 and 722) that the proclama--tion of Martial Law which appears to be an extra-Constitutional step was necessitated by the complete break down and erosion of the constitutional and moral authority of the Government of Mr. Z. A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of Marcb, 1977. It was a situation for which the Constitution provided no solution, ,and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster. The imposition of Martial Law, therefore, stands validated on the doctrine of necessity and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legis'ative measures which have been consistently recognized by judicial authorities as falling within the scope of the law of necessity". This principle would apply to the appointment of President also for which, in the present situation, there is no guidance in the Constitution. Resort to extra- o constitutional measures is not only justified but is necessary. The President Order 13 is, therefore; a valid legislation.
In view of these circumstances, it is not understandable how one can 'take exception to the filling up of the vacancy of the President who had resigned from his office.
35. At page 710 of the report, it was observed that the following prerequisites must be satisfied before doctrine of necessity can become applicable :-
(a) An imperative and inevitable necessity or exceptional circumstances ;
(b) no other remedy to apply ;
(c) the measure taken must be proportionate to the necessity ; and
(d) it must be of a temporary character limited to the duration of the exceptional circumstances.
The pre-requisites which were taken from. The decision of the Supreme Court Cyprus were held to embody the true essence of the do;trine and provide useful practical guidelines for its application.
36. Now if the matter is tested on the basis of these prerequisites, I would be clear that all of them have been satisfied. There was an inevitable necessity of filling up the vacancy of the President which had occurred on account of a voluntary act of resignation of the Ex-President. There was no E Constitutional remedy. To make a provision for appointment and make an E ad hoc arrangement till the next elections was, therefore, a me4sure propor--tionate to the necessity. No exception can, therefore, be taken to President's Order 13 of 1978 on any ground.
37. The learned counsel for the appellant has himself suggested an extra--Constitutional method for deciding the appellant's mercy petition. He suggested that if it is held that the office of the President is vacant the people of Pakistan should be asked to exercise the power of pardon, which is vested only in the President by virtue of Article 45 of the Constitution. It is, P therefore, clear that the appellant is conscious that constitutional void can b filed up by extra-Constitutional methods.
His attack on President's Order 13 cannot, therefore, be said to be bona fide.
38. A very strange argument was raised about the excessive delegation. That point hardly arises since the Chief Martial Law Administrator has not nominated or appointed any one else but has taken over as President of Pakistan. In any case, this is not a point going to the root of the appointment of the President.
39. The appeal, therefore, fails and is dismissed in limine.
ZAKIUDDIN PAL, J.-For the reasons given in the orders written by both of us separately, this I. C. A.
Stand dismissed in limine.
The learned counsel requests for grant of certificate to file appeal before the Supreme Court.
Since the appeal has been dismissed in limine and even otherwise contentions raised by the learned counsel have been repelled being without substance therefore the prayer made by the learned counsel is hereby rejected.
S. A. H.Dismissed. page 583 to 586