ABDUL HAKEEM KHAN, C. J.-This order will also dispose of Writ Petitions Nos. 97, 286, 152, 258, 287 and 331 of 1979; 530 of 1978 and 277, 294, 322, 343, 342, 334, 387 and 320 of 1979, as questions of law on which the present petition (Writ Petition No. 98 of 1979) is to be disposed of, also arise in the aforementioned petitions. It may be added that in some cases, as the sequel will show, questions of facts are also common and the petitioners have identical grievances.
2. Period-wise classification of the writ petitions is as follows:- "Cases in which offences were allegedly committed before the imposition of Martial Law on 5th of July 1977 (hereinafter called Pre-Martial Law cases).
(1) Present Petition, i.e. W. P. No. 98 of 1979 (Sattar Gul etc. v. M. L. A., Zone B, N.-W. F. P., Peshawar and others).
(2) W. P. No. 97 of 1979 (Rashid Ahmad Khan v. M. L. A., Zone B and another).
(3) W. P. No. 286 of 1979 (Gulzar Ahmad Khan and others v. S. M. C. No. 7, Peshawar and others).
(4) W. P. No. 287 of 1979 (Muhammad Zubair v. P. S. M. C. No. 7 and others).
(5) W. P. No. 331 of 1979 (Dayar Khan v. P. S. M. C. No. 7, Peshawar and others).
(6) W. P. No. 530 of 1978 (Abdul Wali Shah v. P, S. M. C. No. S, Mardan).
Cases in which offences were allegedly committed before the imposition of Martial Law and partly after the imposition of Martial Law (hereinafter called Pre- to Post- Martial Law cases):
(1) W. P. No. 277 of 1979 (Zakirullah Khan v. S. M. C. No. 15 and others).
(2) W. P. No. 152 of 1979 (Zafeer Gul v. P. S. M. C. No. 7, Peshawar).
(3) W. P. No. 258 of 1979 (Saifullah Khan v. Major Nasirullah and others).
Cases in which the offences were allegedly committed after the imposition of Martial Law (hereinafter called Post Martial Law cases):
(1) W. P. No. 294 of 1979 (Noor Muhammad v. D. M. L. A., etc).
(2) W. P. No. 322 of 1979 (Muhammad Saeed and five others v. P. S. M. C. No. 3, Kohat).
(3) W. P. No. 343 of 1979 (Abdul Waheed v. P. S. M. C. No. 13, Peshawar and others).
(4) W. P. No. 342 of 1979 (Abdul Karim v. M. L. A., Zone B and another):
(5) W. P. No. 334 of 1979 (Abdus Sattar v. P. S. M. C. No. 13, Peshawar and others).
(6) W. P. No. 387 of 1979 (Habibullah etc. v. M. L. A., Zone B and others).
(7) W. P. No. 320 of 1979 (Fazlur Rehman v. M. L. A., Zone B)."
3. The petitioners of the three Pre- to Post- Martial Law cases, i.e. W. Ps. Nos. 277, 152 and 258 can be grouped together with the petitioners of Pre-Martial Law cases i.e. W. Ps. Nos. 98, 97, 286, as they are being accused of offences of similar type, arising of course 'from different transactions. In W. Ps.
Nos. 287 and 331 (Pre-Martial Law cases), the petitioners are being accused of offences, arising out of the same transaction. As far as W. P. No. 530 of 1978 (Pre-Martial Law case) is concerned, it is a separate case. All the Pre-Martial Law cases are now pending in the Military Courts. As far as Pre- to Post- Martial Law cases are concerned, all the three, i.e. W. Ps. Nos. 227, 152 and 258 are by persons who have been convicted and sentenced as follows:-
(a) Zakirullah petitioner in W. P. No. 277 of 1979: To one year R. I. And a fine of Rs. 1,00,000, under section 409/418, P. P. C. ;
(b) Zafeer Gul and Saifullah petitioners in W. P. No. 132 of 1979 To one year R. I. And a fine of rupees twenty lacs each.
(e) Saifullah Khan petitioner in W. P. No. 258 of 1979 To one year R. I. And a fine of Rs. 20,000.
In the Post-Martial Law cases, Writ Petition No. 294 is a case, which is still pending in the Military Court, while the petitioners in the rest have been convicted and sentenced as follows :-
(a) Muhammad Saeed, Muhammad Iqbal, Malik Saurang, Muhammad Ali, Muhammad Alam and Khushal Khan petitioners in W. P. No. 322 of 1979.
To one year R. I. And a fine of Rs. 3,000 each under section 506/114, P. P. C.;
(b) Abdul Waheed petitioner in W. P. No. 343 of 1979: To one year R. I. And a fine of rupees one lac under section 23/27 of the Drugs Act ;
(c) Abdul Qadeer and Abdul Wahid petitioners in W. P. No. 342 of 1979; To one year R. I. And a fine of rupees one lac each under section 23/27 of the Drugs Act ;
(d) Abdus Sattar petitioner in W. P. No. 334 of 1979: To one year R. I. And a fine of rupees one lack under section 23/27 of the Drugs Act ;
(e) Faizullah, Ziaullah and Habibullah petitioners in W. P. No. 387 of 1979 Faizullah to one year R. I. And a fine of Rs. 25,000.
Ziaullah to on- year R. I. And a fine of Rs. 25,000.
Habibullah to one year R. I. And a fine of Rs. 1,00,000. under section 23/27 of the Drugs Act; and
(f) Fazlur Rehman petitioner in W. P. No. 320 of 1979: To one year R.1. And a fine of Rs. 50,000 under section 23/27 of the Drugs Act."
4. In this context it will be useful to notice those writ petitions in which the accused/convicts have had to face a similar charge or charges before the Summary Military Courts. The first group of cases is covered by Writ Petitions 98, 97, 286, 152 and 258 and the second group Comprises Writ Petitions 287 and 331, still pending with the Summary Military Courts and the third group comprises Writ Petitions 343, 342, 334, 387 and 320 of 1979, where petitioners have been convicted by Summary Courts under section 23/27 of the Drugs Act. It may be added that the other grit petitions are of diverse nature and cannot be grouped together.
5. The background of the case in the first group is common. The Agricultural Development Authority of the Government of N: W. F. P. (hereinafter to be called the A. D. A.) received imported as well as indigenous fertilizers for ultimate sale to the farmers and towards the end of July/August 1974, the A. D. A. Appointed Principal Agents and Special Agents in the North-West Frontier Province. National Farm Guide Trust of Pakistan at Peshawar, working under Bashir Ahmad Khan (petitioner in W. P. No. 97 of 1979) was one of the Principal Agent of A. D. A., the other being Pakistan National Oils (hereinafter to be called PNO), Daur Corporation Ltd., Peshawar (hereinafter to be called DCL) and Sarhad Rural Supply Corporative Corporation (hereinafter called SRSCC). The Principal Agents were to distribute fertilizers supplied by the A. D. A. To the farmers through their authorised Dealers. The share of the Principal Agents was as follows :- For the distribution of the remaining 25% share, the A. D. A. Appointed (1) Gul & Co. Peshawar, (2)
Khyber Fertilizer Corporation, Takht Bai, (3) General Trading Company, Nowshera, and (4) People Farm Service, Lahore, at Peshawar, as their agents to sell the fertilizers to farmers directly as also through their sub-dealers at various places in the N.-W. F. P. On 19th December 1975, the Government of Pakistan announced reduction of 12 % in the sale price of all kinds of fertilizers and undertook to compensate the stockist. Official teams were sent to check the claims and the agents got rebate through cheques. One such cheque was issued for Rs. 1,1086 in the name of Saifur Rehman on 16-1-1976 and be realised it before the imposition of Martial Law.
6. It appears this led to the registration of F. I. R. No. 144 of 16-8-1977, and in the result Zafeer Gul writ petitioner in 152 and Saifullah Khan writ petitioner in No. 258 were booked. But when the case against them was being investigated, it transpired that the writ petitioner& in Nos. 97, 98 and 286 had also embezzled the price of fertilizers sold an3, therefore, permission under section 156 Cr. P. C was obtained and when it appeared clear that they had also fraudulently received rebate, by forging certain documents, F. I. R. No. 823 was registered on 24-10-1977. The amount embezzled by Zafeer Gul (writ petitioner in No. 152 of 1979) was found to be Rs. 9,97,500 (actual price of 15000 bags of fertilizers) and this embezzle--ment had taken place between the period 1-6-1977 to 3rd of August 1977. As far as writ petitioners in No. 98 of 1979, namely, Sattar Gul and Zafeer Gul and Rashid Ahmad Khan in W. P. No. 97 of 1979 are concerned. a reference to the charge-sheet on page 12 of this writ petition will show that they, along with others, are being Wed jointly on the following charges and for offences committed in December 1976: "Sattar Gul and Zafeer Gul, for an offence under section 473, P. P. C. For counterfeiting the seal of Saifur Rehman for the purpose of cheating ; Sattar Gul, Saifullah and Muhammad Khan for an offence under section 468, P. P. C., for forgery by preparing bogus documents in respect of refund of rebate on fertilizers worth Rs. 11,086.61 ; Saifullah Khan, Muhammad Khan. Rashid Ahmad, Sattar Muhammad, Gulzar Muhammad, Gul Hashim and Muhammad Hussain under section 5(2) of the Prevention of Corruption Act for obtaining the Government money by corrupt and illegal means."
Again charge-sheet on page 8 in Writ Petition No. 286 of 1979 will show that the writ petitioners in that case, namely Gulzar Muhammad Khan, Muhammad Khan, Sattar Muhammad Khan and Mir Alam Khan were being charged as follows:- "Gulzar Muhammad Khan and Muhammad Khan under section 468, P. P. C. For committing forgery by making false entries in the Registers in the year 1976-77 and thereby misappropriating 2844 bags of D. A. P. Fertilizer and 637 bags of Urea valued at Rs. 2,48,084.
Haji Mir Alam Khan under section 411, P. P. C. For dishonestly receiving misappropriated property on 2-6-1977 valued at Rs. 1,31,256, Sattar Muhammad Khan under section 109, read with section 468, P. P. C., for abetting the commission of the forgery, as aforesaid, Gulzar Muhammad, Muhammad Khan and Sattar Muhammad, under section 409, P. P. C., for committing criminal breach of trust with, respect to fertilizer bags worth Rs. 3,28,084.
Gulzar Muhammad, Muhammad Khan and Sattar Muhammad under section 5(2) of the Prevention of Corruption Act, 1947, for having committed criminal misconduct in respect of fertilizers and Urea worth Rs. 2,48,084."
7. In the second group Writ Petition No. 287 has been moved by Muhammad Zuber and No. 331 by Dayar Khan. Both these persons, are being tried in pursuance of F. I. R. No. 331, dated 19-9-1971, on the allegation that Muhammad Zuber, contractor supplied 22 air-conditioners on 30-6-1971 for installation in the Agricultural Farm Building at Pir Sabaq, Nowshera after purchasing each unit at the cost of Rs. 7,005 from Bara but charged Rs. 14,555 from the Government for each. The offences with which both the petitioners are being charged are under sections 156(89) and 167 of the Customs Act, 420, 468, 471 and 40) of Me P. P. C. And 5(2) of the Prevention of Corruption Act. It may be added that the air-conditioners supplied by Muhammad Zuber have been confiscated and a penalty of Rs. 25,00,000 has been imposed upon him by the Deputy Collector (Customs), Peshawar.
The appeal against the aforementioned order is, however, pending with the Collector (Customs), Peshawar.
8. Third group of cases relates to Post-Martial Law offences under section 23/27 of the Drugs Act in respect whereof Summary Military Courts have already recorded convictions and sentences:
(i) W. P. No. 343 of 1979 is by Abdul Wahid and W. P. No. 343 by father of Abdul Qadeer to question the validity of convictions and sentences of Abdul Wahid and Abdul Qadeer by the Summary Military Court, under section 23/27 of the Drugs Act on the charges that they sold spurious drugs.
Each one of them was sentenced to one year R. I. And a fine of rupees one lac.
(ii) In W. P. No. 342 of 1979 Abdul Karim father of Abdul Qadeer has questioned the validity of conviction and sentence passed by the Summary Military Court under section 23/27 of the Drugs Act against his son.
(iii) In W. P. No. 334 of 1979, Abdus Sattar Proprietor Zam Medicos Rehmat Market, Bajori Gate, Peshawar, has been convicted and sentenced to one year R. I. And a fine of Rupees one lac under section 23/27 of the Drugs Act for having been found in possession of spurious drugs.
(iv) In W. P. No. 387 of 1979, Faizullah and two others have been convicted and sentenced under section 23/27 of the Drugs Act, read with section 434 of the P. P. C. Habibullah to one year R. I. And a fine of rupees one lac, Ziaullah to one year R. I. And a fine of rupees twenty-five thousand; and Faizullah to one year R. I. And a fine of rupees twenty-five thousand, on the allegations that they were found in possession of spurious drugs on 10-8-1978.
(v) In W. P. No. 320 of 1979. Fazlur Rehman has been convicted and sentenced under section 23/27 of the Drugs Act to one year R.I. And a fine of rupees five thousand for having been found in possession of spurious drugs on the 7th of October, .1978.
9. Cases which do not fall under any group are noticed in the sequel.
(i) W. P. No. 530 of 1978 is by Abdul Wali Shah and the offences of which he is being accused fall under section 420/468/409, P. P. C. Occurrence took place between August, 1976 and April, 1977. The case against the petitioner is that he is a clerk in Habib Bank Ltd., Mardan and that he forged the documents whereby he got Rs. 23,100 fraudulently. He is to face trial before a Summary Military Court.
(ii) W. P. No. 277 of 1979 has been moved by Zakirullah Khan, Chief Engineer, Mechanical, Khazana Sugar Mills, against his conviction and sentence of one year R. I. And a fine of rupees one lac under section 409/418, P. P. C., for committing criminal breach of trust in the sum of Rs. 33,285.08 meant for full time wages payable to the subordinates and cheating with the knowledge that wrongful loss would be caused to the Mills, though it was his duty to protect the interest of the Mills. The first offence was committed between July, 1977 to May, 1978 and second during 1976-77 (presumably the Financial year).
(iii) Writ Petition No. 294 of 1979 has been moved by Noor Muhammad and seven others, against the order, whereby they were ordered to be tried by a Summary Military Court as against the usual practice of being tried by the Special Judge. All of them have been charged for smuggling foreign goods on 15-2-1979, without payment of customs duty under section 156(89) of the Customs Act.
Three of them, namely, Noor Muhammad and Ruhullah and Said Rehman have been further charged under section 156(89) of the Customs Act for smuggling foreign goods and being found in possession of sanitary goods, cloth, vehicles, spare parts, etc. For which no customs duty was paid, on the above-mentioned date at Sarai Miran Bana Mari.
(iv) W. P. No. 322 of 1979 has been moved by Muhammad Saeed and five others to question the validity of their convictions and sentences under section 506/114, P. P. C. To one year R. I. And a fine of Rs. 3,00) on the allegations that they threatened one Munawar Khan who turned an approver in the murder case of two young sons of Major Raqiqullah Shah.
10. It will be seen that W. Ps. 98, 97, 286, 152, 258, 277 and 530 are the cases triable by the Special Judge under the Criminal Law Amendment Act, 1958. W. Ps. 287 and 331 are partly within the jurisdiction of the Special Judge, under the Criminal Law Amendment Act, 1958 and partly of the Special Judge, under the Customs Act. W. Ps. 343, 342, 334, 387 and 219 are exclusively triable by the Special Court under the Drugs Act. So to speak except for .The W. P. No. 322 of 1979, which is a case triable by an ordinary Criminal Court, the rest are to be tried by Special Courts of exclusive jurisdiction under the ordinary law.
11. Writ Petitions, detailed in the first group relate to the offences, which were investigated pursuant to F. I. Rs. 144 of 16-8-1977; 823 of 24-10-1977 and 205 of 2-6-1977. These are cases, which were triable exclusively by the Special Judge, appointed under the Criminal Law Amendment Act, 1958, hereinafter called the Special Judge Criminal. The Minute Sheet which records sanction for trial of these cases by Summary Military Court is on page 155 of File No. 2006/ML/GAG (Vol. III), opened on 29-3-1978 and a reference to the same will show that a Captain of the DA GAG reported what follows:- A huge Government amount has been misappropriated during the last three years-by the agents of A. D. A. With the help of A. D, A. Officials. The loss caused to the Government runs in lakhs. The matter has already been brought to your notice by the concerned authorities. This matter has gained public importance because huge public money is involved. In the interest of the public at large and speedy disposal of these cases, sanction of M. L. A. For trial by a Military Court may be accorded.
The Brigadier M. L. Thereupon observed that under the Rules, a case triable by a Special Judge cannot be tried by a Military Court, unless sanction is obtained and added proposal contained in para. 1 may be approved. Para. 1 refers to the report of the Captain. The note of Brigadier is dated 12September, 1978 and when it was before the M. L. A., he recorded the minute "para. 1 is approved".
12. As far as the cases in second group are concerned, some-offences whereof are exclusively triable by Special Judge Criminal and others by Special Judge appointed under the Customs Act hereinafter called Special Judge Customs, a reference to paras. 1 to 5 of the Minute Sheet of the A.
A. G. (Legal), which is available on File No. PC/ML/Legal/353 will show that though D. M. L. A. (Sector 1) had decided that the case be tried by the Summary Military Court, Captain Ejaz Ahmad Mian, pointed out that M. L. A's. Specific orders were required under M. L. O. 61 for the expeditious disposal of the case, and furthermore sanction of the M. L. A. And Governor for trial of the case by Summary Military Court, for one of the accused, namely Diyar Khan happened to be a Gezetted Governmentth Servant. Brigadier M. L. Requested for the approval of the M. L. A. For trial in the Military Court of the two accused under M. L. O. 61 vide para. 6 of the Minute Sheet and he further prayed for sanction for the trial of Diyar Khan, XEN who was a Gazetted Officer, vide para. 7 of the Minute Sheet. The M. L. A.
By his order, dated 15th of May, 1979 recorded the Minute "Proposals in paras. 6 and 7 are approved".
13. As far as cases of the third group exclusively triable by Special Court under Drugs Act are concerned, the Minute Sheet, appears on pages 56 and 57 of file ML/Legal 353, opened on 1st January, 1979. The A. A. G. (Legal) in paragraphs 5 and 6 of the Minutes submitted that cases arising out of F. I. Rs. Nos. 215, 152, 205 and 521 which relate to this group, recommended that the same be tried by the Military Court. He, therefore, prayed that M. L. A's sanction under M. L. O. 61 may be obtained and the Brigadier M. L. Endorsed the proposal and submitted it for approval. The Minute of M. L. A. Dated, 29-3-1979 reads "approved."
14. As far as Zakirullah, Mechanical Engineer, Writ petitioner in No. 277 of 1979 is connected, the Minute Sheet, available appear in between pages 12 and 13 of File No. PX/ML/Legal/364, marked, in red pencil. The subject of the Minute Sheet is "Trial of Khazana Sugar Mills cases by the Military Court". Minutes in paras. 1 to 8 need not be referred. In para--graph 9, the Brigadier ML-11, inter alia indicated that the views of the Law Secretary were that Zakirullah can be prosecuted under section 406/409/420, P. P. C. In the Military/Civil Court for unlawful gain derived by him. In paragraph 10, the Brigadier proposed that three officers, including Zakirullah, should be proceeded against departmentally and additionally Zakirullah be prosecuted in the Criminal Court for his criminal breach of trust and unlawful gain. In paragraph 11 Brigadier M. L. 11, however, recommended that Zakirullah be tried by the Military Court as there was sufficient evidence and similarly private firm which collaborated in the fraud of steel supplies should also be dealt with by a Militacy Court. The M. L. A. In the Minute, dated 1January, 1979 recorded "para. 11 is approved". The part, which he scored out, however, reads if we are to be trying one in a civil Court, it would be incorrect to try the other in the Military Court. They both" This case, it may be mentioned, was ordinarily triable by Special Judge Criminal.
15. As far as the writ petition of Noor Muhammad and 7 others (W. P. No. 294 of 1979) that the Minute Sheets are available on the file of ML/Legal/353 Part I, F.
1. R. 49 Smuggling case. The minute recorded by DA GAG in paragraph 5 of 12-3,1979 reads:- In this case famous smugglers are involved. There was exchange of fire between police and smugglers at a public place, which warrants the trial by a Military Court. The accused are nominated in the F. I. R. And smuggled items have been recovered from the house of the smugglers. It will be better if the case is tried by a Special Military Court so that maximum punishment for the offence, i.e. (10 years) can be given if offence proved. If M. L. A. Approves, a detailed pre-trial advice will be given by us on the case, for the guidance of the Court.
The A. A: G., however, in para. 8 proposes that for sake of maintenance of law and order and expeditious disposal of this case in the public interest it is expedient that this case may be tried by Special Military Court under C. M. L. O. 61, read with paragraph 3(1) of C. M. L. O. 4 for which the M. L.
A. May please accord approval. The Brigadier M. L. Recorded that "minute 8 above may please be approved". The minute of the M. L. A. Dated 18-3-1979, however, reads: "Para. 8 is approved. 7 Division has recommended Summary Military Court, Discuss with GOC, leave the option of Summary versus Special to him."
Paragraph 10 of the Minute Sheet shows that the Col. Staff 7 Division, indicated that they wished to try the case in a Summary Military Court. This is why the case has been sent to the Summary Military Court. It may be mentioned here that this case was ordinarily triable by Special Judge Customs a Court of exclusive jurisdiction. It is also noteworthy that offences under sections 307 andst others of P. P. C. Of which these accused were charged have been left out and shall continue to be prosecuted in the ordinary Courts of criminal jurisdiction.
16. Before embarking upon a detailed discussion of the law points that arise in the present petitions, it will be necessary to advert to the authorities of the Supreme Court which should clarify all doubts, regarding the powers of this Court, as respects judicial reviews of the executive actions and the limits that have been laid down by the Supreme Court of Pakistan, within which executive can work.
At page 716 in Begum Nusrat Bhutto v. Chief of Army Staff, etc. (PLD 1977 SC 657), his Lordship the Chief Justice of Pakistan, has, on the point of judicial review, observed:
(v) That the superior Courts continue to have the 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 law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presi--dential Order or Ordinance. The last point needs a little explanation. In the body of this judgment opinions of certain textbook writers and contemporary jurists have been quoted in support of the proposi--tion that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for a specified and limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of salus popull suprema lex, the superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity. There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, Legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th March, 1977, but no such consideration arose in regard to the judicial organ of the State.
Accordingly on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Consti--tution, be taken away. Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation, the fact remains that the ideology of Pakistan emodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts of justice, are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the Superior Courts.
The position stands further clarified by the observations of his Lordship on page 719 of the said authority, which read:- A perusal of the provisions of the Laws (Continuance in Force) Order also shows that they are primarily designed to give effect to the purposes of the Proclamation. As however, this order is an offspring of necessity, the superior Courts continue to have the powers of judicial review, notwithstanding anything to the contrary contained in this 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, as already set out earlier.
So far as the powers of the Executive are concerned, reference with advantage may be made to the observations of his Lordship the Chief Justice of Pakistan on pages 715 and 716 of the authority quoted above, which read: As a result, the true legal position which therefore, emerges is :-
(i) That the 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 ;
(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite the Proclamation of Martial Law ;
(iii) That the Chief Martial Law Administrator having validly assumed powers 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 ;
(a) All acts or legislative measures which are in accordance with, or could have been made under the 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 Proclamation of Martial Law, namely restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution ;
(iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require.
His Lordship gave reasons for the categorisation in a subsequent case; Zulfikar Alt Bhutto v. State (PLD 1978 SC 40) on page 58, and observed that the categorisation had been made after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State, and that the reason for such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then as a logical corollary it follows that the new Regime or Administration must be permitted in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. His Lordship proceeded on to observe that once it is shown that the impugned action reasonably falls within one or the other enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity. His Lordship nevertheless cautioned that in the exercise of its powers of judicial review, the Court is to see that executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. In this context his Lordship observed that Court can take judicial notice of certain material, as their Lordships did in the case of Begum Nusrat Bhutto's case, referred to above, and that what is reasonable is to be judged by the standard of an ordinary prudent man.
It appears that it will also be useful to advert to the observations of Mr. Justice Nasim Hasan Shah, about limitations that Islam places on the doctrine of necessity. His Lordship observed:-- However, before this doctrine can be invoked the following conditions must pre-exist:
(a) that which is forbidden by Allah can be taken only where one is driven to it by necessity ;
(b) that there is neither craving nor the intention to transgress the limits set by him;
(c) that only that bare minum is taken as is necessary to save life.
Thus the principle of necessity as also the conditions in which it can be resorted to are clearly set forth in Islam.
That observations of his Lordship Muhammad Akram, J. That--- "ours is an ideological State of the Islamic Republic of Pakistan. Its ideology is firmly rooted in the Objectives Resolution with emphasis, on Islamic Laws and concept of morality. In our way of life we do not and cannot divorce morality from law. Therefore, the Pure Theory of law is not suited to the genesis of this State. It has no place m our body politics and is unacceptable to the Judges charged with administration of justice in this country." would further indicate that it blazes a new trail when his Lordship observed that Pure Theory of Law is not suited to the genesis of this State and it has no place in our body politics and is unacceptable to the Judges charged with the administration of justice in this country. It will follow that while interpreting laws and reviewing the executive actions, the basic concept of morality, as it is there in Islam, will have to be followed.
The relevant provisions of Laws (Continuance in Force) Order, 1977, from which M. L. O. 4, as reconstituted by 37 and M. L. O. 54, as reconsti--tuted by 61, draw validity read:-
(1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, the 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.
Explanation.---In this Order the term Constitution shall be so construed as if-
(a) In clause (3) of Article 175 of the Constitution for the words, five years, the words, five years and six months, were substituted ; and
(b) Articles 179, 185, 199 of the Constitution had not been amended by any of the Acts amending it,
(2) subject as aforesaid, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdictions: Provided that the Supreme Court or a High Court shall not have the power to make any order of the nature mentioned in Article 199 of the Constitution, against the Chief Martial Law Administrator, or a Martial Law Administrator or any person exercising powers or jurisdiction under the authority of either.
(3) The Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, and all proceedings pendings in any Court in so far as they are for the enforcement of any of those Rights, shall stand suspended.
(5) Notwithstanding the abeyance of the provisions of the Constitution, but subject to any order of the President or Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator, all laws, other than the Constitution, and all Ordinances. Orders in Council, Orders made by the President, Rules, By-laws, Regulations, Notifications and other legal instruments in force in Pakistan or any part thereof, or having extra-territorial validity, shall, so far as may be and with such adaptations as the President may see fit to make, continue in force until altered, amended or repealed by competent authority.
It will to seen that in paragraph 2 powers of the President and the Chief Martial Law Administrator to make Constitutional deviations is reserved but nevertheless the Islamic Republic of Pakistan was to be governed, as nearly as may be, in accordance with the Constitution. True that in Nusrat Bhutto's case their Lordships have allowed the Chief Martial Law, Administrator to amend the Constitution, but as is the case with the validation of the regime these deviations are to be made on the basis of doctrine of necessity, I.e. The very basis on which the present regime has been validated. Another remarkable feature of the Laws (Continuance in Force) Order is that subject to the order itself any order made by the President and any Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator, all Courts in existence, immediately before the commencement of this Order "shall continue to function and exercise their respectives powers and jurisdictions". Furthermore, by paragraph 5 all laws other than the Constitution were continued to function until altered, amended or repealed by the Competent Authority. But this continuation was subject to such orders of the President and the Chief Martial Law Administrator as he might condsider it fit to make. Though the provisions of sub- para. (2) of paragraph 2 and paragraph 5 would prima facie show that the President and the Chief Martial Law Administrator can do whatever they like but it ought not to be overlooked that the doctrine of necessity laid down by the Supreme Court of Pakistan in its latter announcement is all pervading. Abolition of this or that Court and amendments and changes in the existing laws by the President or the Chief Martial Law Administrator can only be upheld if those are justified by doctrine of necessity. When one reads the provisions of sub-para (2) of paragraph 2 one cannot help making an observation that in most unequivocal language the Courts existing on the 5th of July, 1977 were allowed to continue to function and to exercise their respective powers and jurisdiction, and that the only reasonable and logical interpretation of the words "subject as aforesaid" occurring in that sub-para reserved to the President and the Chief Martial Law Administrator powers to stop the functioning of the Courts, existing before the Proclamation of the Martial Law and that too, on the ground of necessity. The sub-para certainly does not contemplate the creation of new Courts, which should simultaneously function and exercise similar powers and jurisdiction as we find with the Courts that existed before the Proclamation of the Martial Law and have been continued. It will be certainly anamolous while all existing Courts were continued, to function with their respective powers and jurisdictions, a, Court pinching those powers and functions can be brought about by the President or the Chief Martial Law Administrator. As already observed, they can only direct, in the exercise of the powers conferred by the aforesaid sub-para that an existing Court shall not continue to function or exercise its respective powers and jurisdiction. It will be difficult indeed to justify that special jurisdiction can nevertheless be created on the ground of necessity. The argument will be self defeating. While majority of the cases should continue to be decided by the Courts, which were existing before the imposition of the Martial Law few picked up by the Martial Law Administrator could only be proceeded with and decided by such Special Courts, as the Chief Martial Law Administrator might like to direct, will demonstrate the absence of necessity. If the Court that existed before the imposition of the Martial Law have outlived their utility they can be closed entirely or partly for all, without exception under the provision, if such a recourse will be justifiable by the law of necessity, or law could be made to get better result from those Courts by amending substantive and procedural laws if those were found in any way wanting. Once it is conceded that alternate remedy through Courts of the land is available, there will be no raison d'etre for the creation of Special jurisdiction, one should exceptional jurisdiction which not only militates against the universally recognised Human Right that every person in the State is entitled to equal treatment under the law and equal protection of law but is also violative of the injunctions of Islam.
18. Without entering upon a detailed discussion as to what is a procedural law, it may be said, without fear of contradiction that the procedural law is generally speaking retrospective unless, of course, it affects certain vested rights and works to the prejudice of persons in whom those rights are vested. If that be the situation, the Courts will look for express provision, in the law or endeavour to glean out necessary intendment. In this context reference with advantage may be made to Malik Mir Hassan and another v. The State (PLD 1969 Lah. 786), The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681), Adnan Afzal v. Captain Sher Afzal and Nabi Ahmad and another v. Home Secretary, Government of West Pakistan Lahore and 4 others (PLD 1969 SC 187) and Muhammad Alam and J others v. The State (PLD 1967 SC 259). There can be no manner of doubt that M. L. O. 4, as reconstituted by 37 and M. L. O. 54, as reconstituted by 61, are laws of procedure. The question is whether these laws have got retrospective effect and will affect Pre- Martial Law cases as well. There is nothing in paragraph 2 of M. L. O. 4, as reconstituted, to show that the Jurisdiction of the Military Courts extends also to the cases in which offences before Martial Law were involved. On a careful examination of paragraph 3 as well, the conclusion will be inevitable that it also does not apply re--trospectively. If the intention was that the offences which had been committed under the ordinary laws before the imposition of Martial Law were to be triable by the Military Courts, they could have said so. The mere fact that paragraph 3 (1) empowers the Martial Law Administrator to transfer any case, pending before an ordinary Criminal Court to Military Court, will not show that the intention was to permit the Martial Law Administrator to transfer such pending cases also which related to the commission of the offences before the imposition of Martial Law or had been taken cogniz--ance of by the ordinary Criminal Courts before Martial Law.
The Martial, Law authorities could not be unaware of the requirements, regarding retrospectivity, inasmuch in the earlier Martial Law of 1969 there was M. L. O. 42 in which they made express provision, regarding retrospectivity as respects offences committed before the imposition of Martial Law. It is the duty of the Court to lean in favour of consistency and assume that Law making authorities have acted or intended to act within the scope of the mandate and that in any case they had no intention, whatsoever, to take away certain beneficial provision, made after full and ample consideration by the competent Legislature. It will be merely an academic exercise if one was to enter into the controversy as to what is a "case pending" for none of the cases before us, as a matter of fact, was pending before an ordinary Criminal Court when it was passed on to the Military Court. It may, however, be mentioned that offences of which petitioners in Writ Petitions Nos. 152 and 258 have been charged, include some accusations as regards Post-Martial Law period and that the petitioners in 322 of 1979 alone are being accused of commission of offences during post-Martial Law period, I.e. July, 1978.
19. The position i3 somewhat different so far as M. L. O. 54, as re--constituted by 61 is concerned.
The latter reads:- Martial Law Order No. 54, shall be reconstituted and shall be deemed to have always been so reconstituted, namely:- Notwithstanding anything contained in any law for the time being in force by virtue of which an offence is triable exclusively by a Special Court, Special Judge or any other type of Tribunal, such offence shall, in case in which the Chief Martial Law Administrator or, as the case may be, a Martial Law Administrator so direct, be tried by a Military Court and if such case is pending in a Special Court, Tribunal or before a Military Court under sub-paragraph (1) of paragraph 3 of Martial Law Order No. 4.
It will be seen that in this Order, unlike M. L. O. 4 as reconstituted there exists Non obstante clause which has the effect of superseding the existing, Special jurisdiction of Special Courts, before the imposition of Martial Law, but again in this law as well there is nothing to show that it has got a retrospective effect. In this context also it will be not necessary to dilate upon the words as to what is a pending case for in none of the cases, which have been questioned before us, in these constitutional Petitions, it has been alleged that these cases have been transferred to the Military Courts, while those were pending with concerned Special Judges. It may here be mentioned that under M. L. O. 4, as reconstituted, a Military Court may, for the purpose of sub-paragraph (1) take cognizance of an offence, (a) upon receiving a com--plaint of facts which constitute such offences, (b) upon a report in writing of such facts made by any Police Officer or any officer of Armed Forces and (c) upon information received from any person, other than a Police Officer or an officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed.
20. Be that as it may, in none of the cases before us anything turns upon the retrospectivity of M. L.
Os. 4 and 5, as reconstituted. Cognizance of offences had not been taken before the imposition of the Martial Law by the ordinary criminal Courts or the Special Courts, and it is well settled that crucial date in the case of a procedural law is the date of the cognizance of the offence by the Court. In this behalf reference with advantage can be made to Banwari Gope and others v.
Emperor (AIR 1943 Pat. 18), Salig Ram v. Emperor (AIR 1943 All. 26) and Ghazi and others v. The State (PLD 1962 Lah. 662). As a matter of fact these cases have not been sent to the ordinary Criminal Courts or Special Courts even after the imposition of Martial Law. So to speak, regardless of the fact that an offence was committed before or after the imposition the case questioned by Writ Petition No. 322 of 1979 could have come up for before a Military Court constituted under M. L. R.
4 reconstituted and in all other cases before Military Courts constituted under M. L. R. 54, reconstituted. No sooner it is held that in none of these cases, a pending case was transferred under the orders of the Martial Law Administrator to the Military Court, it becomes inevitable to dilate upon the prerequsites laid down in paragraph 3 (1) of the M. L. R. 4, as reconstituted, namely, that where the Martial Law Administrator is of the opinion that it was necessary for maintenance of law and order of public tranquillity or for expeditious disposal of any case in public interest that the case be transferred, pending in a ordinary Criminal Court, to the Special Military Court, he can do so. But the question is whether in a case which was not so pending and would not fall within the ambit of paragraph 3 of the Martial Law Order No. 4, the Martial Law Administrator had the absolute discretion to pick and choose cases and direct their institution with the Military Court. As a matter of fact, excepting W. P. No. 322 of 1979, all the petitioners are ordinarily triable by a Special Judge or Court, where qualifications laid down for a Presiding Officer are such that he should be a person who can be appointed as a Judge of the High Court, the accused have right of appeal to the High Court; and in some cases additional safeguards.
21. Answer to the aforementioned question cannot be but in the negative. As far as cases, covered by M. L. O. 4, as reconstituted, are concerned in the first place the cognizance of offence by Military Court can on be taken (a) upon a report in writing made by an Officer of the Armed Forces, or.
Police (b) upon receiving a complaint of facts, which constitutes such offence and (c) upon information received from any person other than a Police Officer, or an Officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed. It is true that the Martial Law Administrator is also an officer of the Armed Forces but he has not been conveying informations or making reports in writing but has been issuing directions to the Military Courts and this very naturally affected their capacity of doing justice because the cases had come from above. No sooner it is conceded the cognizance of the offence by the Military Court in a case was) under the orders and not in conformity with the prerequisites laid down in paragraph 2(2) M. L. O. 4, as reconstituted, the very basis for assumption of jurisdiction stands knocked out. It must be added that in all the cases it will be in violation of the law laid down in Nusrat Bhutto's case if Martial Law Administrator was to be considered having absolute powers in this behalf. His directions must show that the order that he was making or did make was justified by the law of necessity and in that close nexus with the public welfare was involved. In all these cases, as has been observed earlier in this judgment, that which the Martial Law Administrator has been doing is that he has been agreeing with the proposal of the staff and he has himself not passed any speaking order.
The direction, which he has passed in the case, covered by Writ Petition No. 294 of 1979, is a classic example of passing responsibility in a matter, which M. L. O. 64, as reconstituted, required to be under his own orders. As to whether the trial should be before the Summary Military Court or Special Military Court he left it to the option of the G. O. C. Who is his subordinate and the ultimate effect of the order is that in a case wherein according to the note of G. A. G. The delinquent could get punishment of 10 years' R. I. In a Special Military Court, he may get only one year R. I. And a fine from the Summary Military Court, to which the case has been trans--ferred.
22. It should not be overlooked that the orders of the Martial Law Administrator in this context are judicial orders and what is required in such cases is that a speaking order should be passed even where the law has express--ly left the matter to the "Opinion of an Officer". In such cases, as following quotation from the judgment of the then Chief Justice of Pakistan, Mr. Justice, A.R.
Cornelius in Sayyid Abul A'la Maudoodi etc. v. The Government of West Pakistan, etc. (PLD 1964 SC 673) will show, there should be an objective assessment. His Lordship has observed:- In the judgments hereunder appeal as well as in number of the judg--ments, which have been cited, the opinion has been expressed that in acting under section 16 of the Act of 1908, the Provincial Government exercises a purely subjective judgment. That is a view with which I find it difficult to agree. The judgments at the same time indicate that in the view of the learned Judges, it is a duty of the Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which, the opinion must be formed honestly, that the restrictions is necessary. In this process, the only element, which I find to possess a subjective quality, as against objective determi--nation, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope of exercise of personal discretion is extremely limited. It is indeed difficult to make any appreciable allowance, for the play of a personal equation, where the judgment has to be formed as to matters, relating to the administration of law, the maintenance of law and order, and preven--tion of danger to public peace, such as attract the exercise of judg--ment by a host of Government Officials at all levels, as a part of their ordinary day-to-day duties. Should therefore the Courts be asked to shut their eyes to all the facts and circumstances, and to consider themselves bound to hold the action to be within the section merely because the section employs the word opinion, there would be involved a denial of the judicial function in a field where that function is most directly attracted namely, the maintenance of liberties of the subjects under a written Constitution, and where, moreover, the judicial mind is both apt and accustomed to travel with the utmost confidence.
As I have said in the jurisdictions, which follow the British Common Law, the Courts have never felt themselves barred from subjecting executive or judicial actions to judicial review, although in view of the sovereignty of Parliament, they have by gradual process finally accepted a bar against their power to review parliamentary legislation.
23. It was urged on behalf of the respondents that the procedural laws, contained M. L. O. 4 reconstituted, and M. L. O. 54, as reconstituted, are not without parallel and that in a similar situation the special Criminal Courts Ordinance, XI of 1942 was allowed to work, along with the ordinary criminal Courts. In this respect our attention was invited to Banwarl Gope and others v. The Emperor, Salig Ram v. Emperor, Emperor v. Benoari Lal Sarma and others (AIR 1945 P C 43) and Emperor v. Benoari Lal Sarma and others (AIR 1943 FC 36) wherein the special jurisdiction conferred upon the Courts, constituted under the Special Criminal Courts Ordinance XI of 1942 was upheld but this argument overlooks that the emergency in that case was declared under the Government of India Act and in the instant case all that has been done by the present regime has been validated under the law of necessity by the Supreme Court and what they may in future do will not be touched in case it is justified by the law of necessity. So to speak the perspective has changed and it is, therefore, now permissible to the Courts as has been held by the Supreme Court of Pakistan in Nusrat Bhutto's case and Z. A. Bhutto's case, alluded to above, to examine the necessity and to de--termine the nexus of powers, assumed with the categories enumerated by their Lordships in the judgments, and as such the observation of the Privy Council in 1945 P C 48, referred to above, that- "in construing enacted words the Court is not concerned with the policy involved, or with the results, injurious or otherwise, which may follow from giving effect to the language used" cease to be relevant. As has been observed by Muhammad Akram, J. In our way of life we do not and cannot divorce morality from law and that the Pure Theory of law is not suited to the genesis of this State. It has also no place in our body politics and is unacceptable to the Judges charged with the administration of Justice in this country.
24. The learned Advocate-General further submitted that procedural defects are to be ignored and in this respect he cited several authorities namely, Parbhu v. Emperor (AIR 1944 P C 73), Lumbhardar Zutshi and another v. The King (PLD 1947 P C 257), Walizar and another v. The State and Manzoor Elahi v. The State (PLD 1960 Kar. 204), The State v. Muhammad Hussain (PLD 1968 SC 265) and Mapal Khan v. M. L. A., Zone A (PLD 1978 Lah. 766) but we do not feel called upon to enter into a detailed examination of these authorities for in there the provisions of Article 4 of the Constitution do not appear to have been noticed. One will rather refer to PLD 1968 Kar. 599 wherein a Full Bench of three Judges, including the present Chief Justice of Pakistan, Mr. Justice S. Anwarul Haq, while dealing with a case under section 172-A of the Sea Customs Act, struck down the search as illegal for want of compliance with the provisions of section 172-A and observed as follows:- The law further requires that the statement must also mention the goods for which the search is to be made. These are stringent requirements prescribed by law in order to ensure that the enormous power of search without warrant given to Customs Officer is exercised honestly and judi--cially. By insisting that the grounds for his belief shall be recorded be--forehand by the Customs Officer concerned, the law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can be tested later, if challenged by the aggrieved party. To put it differently it seems to me that this is a safeguard prescribed by the Legislature to ensure that the rights of the citizen in respect of private property are interfered with only for genuine reasons, related to the prevention of smuggling and evasion of Customs duty, etc. This safeguard can be effective only if the procedure prescribed by law is faithfully and honestly followed by application of mind in each individual case. The notice relied upon by the Customs authorities does not fulfil these requirements.
His Lordship elaborated that the procedure adopted also violated the constitutional guarantee given by Article 2 of 1962 Constitution, which corresponds to Article 4 of the Constitution. His Lordship's observations are:- However, the omission to do so does not appeal to me to have a material bearing on the legality of the search, for the reason that this is an additional requirement which has to be complied with after the event, and its omission could be made good even at a later stage. The real safeguard to the individual citizen lies in the fundamental requirement that a statement in writing must be prepared by the Customs Officer before he embarks upon the search. It is clear that if this is not done, then there is not only a breach of the relevant statutory provision as contained in section 172(a) of the Act, but there is also a violation of the Constitutional guarantee contained in Article 2 of the Constitution, namely, that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The power conferred by section 172(a) on the officers of the Customs Depart--ment being of a drastic nature, capable of doing immense harm to the rights and reputation of the individual, the Courts must insist that the requirement of the law be strictly complied with before the search is undertaken and failure to do so must invalidate the search.
In this view his Lordship was supported by A. S. Farooqi and Khamisani, JJ and both the learned Judges disagreeing with Mr. Justice Anwarul Haq made a further direction that the goods seized should also be returned to the petitioner. In this sequence it may also be mentioned that non- compli--ance with the provisions of the Customs Act has been found to be a jurisdic--tional defect in Iqbal Akhtar v. Ch. Muhammad Mushtaq and 4 others (PLD 1977 Lah. 1318), by Mr. Justice Shafi- ur-Rehman, where he observes that raid, search and arrest of the petitioner, being without lawful authority and of no legal effect, all subsequent proceedings based on such illegalities were non- existent in the eyes of law. Mr. Justice Zakiuddin Pal also noted with concern that non-compliance with formalities and procedure laid down by the Special Statute still continues in corruption cases.
[See PLD 1979 Lah. 178].
25. It has already been observed that assumption of jurisdiction in the ordinary criminal Court cases as also in cases triable by Special Court would not attract the doctrine of necessity in the cases before us. It is true that law for the welfare of the people can be enacted either by Ordinances or Presidential Orders or Martial Law Regulations or Orders by the connected authorities but the question arises and which appears to be very crucial as to whether in an ideological State like Islamic Republic of Pakistan, which stands committed to secure fully the independence of judiciary, as per Objective Resolution and where even Laws (Continuance in Force) Order also ensures the separation of Judiciary within five and a half years, though regrettably that period has already expired on the 15 of February 1979, it will be possible to canvass an argument that trial of cases by Military Courts what to speak of Summary Military Court will be conducive to promotion of justice wherein incidentally lies the welfare of the people.
Pakistan Penal Code, Special Penal Laws, the Code of Criminal Procedure, Evidence Act and for that matter all other laws can no doubt be amended, if on the basis of experience gained it will be in the interest of justice so to do, but welfare of the people does not appear to lie in conferment of Special Jurisdiction upon Military Courts in cases for which ordinary Criminal law and Special Courts have not only been continued but are also open and available. How can welfare of the people assumed when they stand exposed to discrimination and incidental hazards. Moreso, when already some Islamic 'laws have been introduced in Pakistan and the country is on the threshold of entering into the era where Islamic penology and the administration of justice is going to be introduced even in the left over matters within five to six months, as per the Quetta Speech of the President and the Chief Martial Law Administrator, dated 16th May 1979. One wonders that the welfare of the people will be advanced or we will be nearing it if Courts presided over by technocrats are to be replaced with Army Officers, who are by and large not qualified or trained to go into the niceties of law whether it is on criminal or civil side. Is it not fantastic that while an offence under sections 409, 406, 468, 474, P. P. C., 5(2), Prevention of Corruption Act, 1947 punishable with imprisonment varying between three years to life imprisonment of ten years and the first offence under section 27 of the Drugs Act is punishable with not less than three years and subsequent offence under section 28 ibid with minimum imprisonment of seven years, these cases should be tried by Summary Military Courts, which can only pass a sentence of imprisonment of one year R. I. And order whipping with unlimited fine. It may be mentioned while normally a Summary Military Court is presided over by a Major, Special Judge Criminal must be a person who is qualified to become a Judge of the High Court or has been a Sessions Judge for three years of so. Section 3 of the Criminal Law Amendment Act, 1958 provides:- No person shall be appointed as Special Judge unless ho--
(a) is qualified under clause (2) of Article 92 of the Constitution for appointment of a Judge of a High Court ; or
(b) is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge or a District Magistrate or an Additional District Magistrate and has not retired from Governmentth service or at any time been removed or dismissed from such service.
The provisions of the Drugs Act, as regards the constitution of the Court, are contained in section 31 and it lays down that a person who is or has been a Judge or is qualified for appointment as a Judge of the High Court, shall be the Chairman and two other members of the Court shall be experts in medical and pharmaceutical fields. Several defences are available in the Drugs Act and rights of appeal to the Division Bench of the High Court are other special features of that. In case of Corruption Act also there is a right of appeal to the High Court and an accused person is a competent witness.
26. That the Courts have not failed the country is a statement which finds support from Nusrat Bhutto's case and one indeed fails to understand how the trial of few cases by the Military Courts is going to promote the welfare of the people. Why at all the jurisdiction of the established Courts of justice whose continuance and jurisdiction has been preserved by the Laws (Continuance in Force)
Order, itself, should be bypassed in certain cases for advantages which appear to be dubious.
27. That the High Court at Lahore is also thinking on the same lines would appear from the following:--
(1) In Dil Muhammad v. Summary Military Court PLD 1978 Lah. 128, Mr. Justice Shafiur-Rehman observes:- The Summary Military Courts have been exercising an exceptional jurisdiction rooted in State necessity. They have a limited jurisdiction and, therefore, if assume jurisdiction they must do it within the four corners of the law that they have themselves framed. If they have any misconception about it or are mistaken about it or over reach it, or apply it in utter disregard of facts and circum. Stances of the case, then it is not possible to defend their actions on the ground of substantial justice, as if justice is independent of these factors. The very assumption of jurisdiction in these cases as cases of contravention of Martial Law Order or Regulation was wholly without jurisdiction as also the proceedings and result of the trial.
(2) In Muhammad Nawaz v. Summary Military Court (1979 P Cr. L J Note 23 at p. 15) Mr. Justice Zakiuddin Pal observes:-- In the present case the petitioner has tried to misappropriate the amount of Rs. 455, by getting prepared an exaggerated bill. It is admitted on record that the aforesaid excess amount was not actually received by him and his attempt to misappropriate that amount to his own use did not succeed. Ordinary Courts in the country are functioning properly and the cases like the present one are being dealt with by them every day. No extraordinary circum--stances have been brought on record to show that case of this type is required to be tried by the Summary Military Court in the given circumstances. It has been contended by the learned Asstt. Advocate-General that since the corruption is rampant in the country, therefore, in order to eradicate that, cases involving corruption should be tried by the Military Courts so as to be disposed of expeditiously. According to him such act on the part of the Martial Law Authorities concerned will tend to advance or promote the good of the people and is required to be done for the ordinary orderly running of the State. The fact, however, remains that the cases not involving serious moral turpitude and breach of law and order should not be ordinarily tried by the Military Courts other--wise functioning of the ordinary Courts would come to standstill. The object of advancing or promoting the good of the people and running the State in an orderly manner can be achieved by trial of cases involving serious offences by the Military Courts and not by trying petty cases like the present one. The jurisdiction of the ordinary courts to try such cases has not been ousted by any legislative measure and as such it is open to the superior Courts to determine by way of judicial review whether given circumstances of a case warrant its trial by the Military Court. The circumstances of the present case as discussed above did not warrant its trial by the Military Court and as such the impugned order passed by that Court cannot be sustained on the basis of State necessity.
(3) In yet another reported case Abdur Rashid v. State (PLD 1979 Lah. 273) the same learned Judge at p. 277 observes:- According to the learned Assistant Advocate-General, the Martial Law Authorities concerned ordered on 19th of August 1978 for trial of the case by the Summary Military Court. The application submitted by Maj. Zahid Munir bears some signature under the aforesaid order. The said signatures are not, however, legible. The main reason given by Major Zahid Munir for the trial of the case by the Summary Military Court was that the accused party was very influential and the applicant would not get justice from the civil Courts. It may be mentioned here that there is nothing on record to show that the case which was pending before the Ordinary Civil Court was transferred to the Summary Military Court for trial by some competent authority under Martial Law Order 37.
According to that provision Martial Law Administrator of a Zone can make an order for transfer of a case to a Military Court pending adjudication before the ordinary Criminal Court, if he is of the opinion that such transfer is necessary for the maintenance of law and order or public tranquillity or for expeditious disposal in public interest. Even if it is conceded for arguments sake that the present case was transferred by a competent authority under Martial Law Order 37 question would still remain to be answered whether such transfer was necessitated on the grounds mentioned in Martial Law Order 37. The incident obviously did not relate to the maintenance of law and order or public tranquillity. The crime involved no doubt is heinous but after its alleged commission on 2-12- 1977 nothing untoward happened till the case was registered against the accused on 25-1-1978.
Even thereafter as mentioned above the parties compromised and the Summary Military Court concerned sent the case back to the District Magistrate for being dropped. It clearly shows that law and order situation was not involved in any manner. The next ground on the basis of which a case can be transferred by a Martial Law Administrator to a Military Court is if its expeditious disposal is considered to be in public interest. The case no doubt was disposed of expeditiously but what public interest was involved in such disposal has not been shown anywhere on record nor any such interest has been brought to the notice of this Court during the arguments. Public interest may have been involved if the matter related to the maintenance of law and order or public tranquillity.
In certain cases registered under the Penal Code, which were tried by the Military Courts, public sentiments were aroused at large because of the commission of such offence in a very grave manner. A teen--aged boy named Pappu was criminally assaulted and then murdered by some accused persons at Lahore. His dead body was recovered from a pond. This aroused the public interest and hue and cry all over and it was demanded that culprits should be apprehended and tried expeditiously. The circumstances of that case no doubt necessitated the trial by a Military Court. There are some other instances also of the same kind. However, in the present case, I have not been able to find out any legal necessity or any prerequisite for trial of such offences by a Military Court.
28. The position is indeed anamolous when we see that the F. I. R., smuggling part of which is being questioned in W. P. 294 of 1979, has also complained about the attempted murder of Police Officer, but that part of the case has been left to the ordinary criminal Court and the part which relates to smuggling is to be tried by the Summary Military Court in pursuance of the directions of the Martial Law Administrator. Again in the case covered by W. P. No. 322 of 1979, motives have been attributed to the Military Officers. It is an unfortunate case wherein lives of two sons of an Army Major have been lost in circumstances which do not appear to be natural but it will certainly inspire confidence if the matter is left for the decision by ordinary criminal Court.
29. It may also be added that there is force in the contention that the accused in W. Ps. 294, 287 and 331 of 1979 cannot be proceeded against under the Customs Act, till their appeal4, regarding confiscation of goods is disposed of by the Collector. In this respect reliance has been placed on 1973 SCMR 411. The words in column 2 against section 156, item 89 "upon conviction by a Special Judge to imprisonment for a term not exceeding six years and to fine not exceeding ten times the value of such goods and if the Special Judge in his discretion so orders also to whipping' do lend weight to the submission that the case before the Special Judge will only proceed if the Collector upholds the order of the Deputy Collectors and that the Act provides sentence of imprisonment and the rest only upon conviction by a Special Judge.
30. For the reasons I accept all the petitions and set aside the convictions and sentences of the petitioners in W. Ps. Nos. 286, 152, 258, 277, 322, 343, 334, 387 and 320. This shall not, however, preclude the authorities from proceeding with all or any of the cases in accordance with procedure applicable.
SHAH NAWAZ KHAN, J. -I have carefully read the judgment of my Lord the Chief Justice, but I have my own views to express, although I do so with profound respects to the conclusions arrived at by my Lord the Chief Justice.
2. This case and the connected cases have each to confront us with a different view. In some cases the petitioners have already been convicted and sentenced and in some cases they are being proceeded against or about to be proceeded against by the Special Summary Military Courts.
However, the main point for determination before us is whether such cases which are triable exclusively by a Special Court or Special Judge can be directed to be tried by a Military Court. It is conceded that no case amongst the present case was pending in any Special Court nor any transfer of such case to Military Court under, sub-paragraph (1) of paragraph 3 of Martial Law Order No. 4 is involved. I, therefore, respectfully agree with my Lord the Chief Justice that cognizance of offences had not been taken before the imposition of the Martial Law, by the ordinary criminal Courts or the Special Courts and it is well-settled that crucial date in the case of a procedural law is the date of the cognizance of the offence by the Court, regardless of the fact that in some cases the occurrence were allegedly committed before the imposition of Martial Law. I have also no reason to disagree with my Lord the Chief Justice in this conclusion that under the circumstances where the Martial Law Administrator is of the opinion that it is necessary for maintenance of law and order or public tranquillity or for expeditious disposal of any case in public interest, a case may be entrusted to a Military Court or even case pending in a. Criminal Court may be transferred to the Special Summary Military Court, he can do so. However, once it is conceded that the Martial Law Administrator can do so, then it will become a matter of least concern to ponder over the question as to what are the qualifications laid down for a Presiding Officer to preside over the Special Court or whether the accused has under the ordinary circumstances, the right of appeal.
3. I need not go in details, because in the judgment of my Lord the Chief Justice, sufficient case-law has been discussed and in my humble opinion it may not be very material to consider as to whether the Martial Law Administrator while entrusting the case to a Special/Summary Military Court has passed a speaking order or he has only agreed to the proposal of the staff working under him, for basically we have to look to the result of that order. The Privy Council in a case reported in PLJ (India) 1945 P C 45 onwards had observed that, "In construing enacted words the Court is not concerned with the policy involved or with the results, injurious or other--wise, which may follow from giving effect to the language used".
4. We have before us Martial Law Order No. 61, which substituted Martial Law Order No. 54 and as re-constituted, it reads as follows:- "Notwithstanding anything contained in any law for the time being in force by virtue of which an offence is triable exclusively by a Special Court, Special Judge or any other type of tribunal, such offence shall in case in which the Chief Martial Law Administrator, or as the case may be, a Martial Law Administrator so direct, be tried by a Military Court and if such case is pending in a Special Court, tribunal or before a Special Judge be transferred in a Military Court under sub-para. (1) of paragraph 3 of Martial Law Order No. 4."
This Martial Law Order was issued and published in the Gazette of Pakistan Extraordinary, Part I, dated 23rd November 1978, and the cases under review, which are before us, are apparently covered by this Order and the action taken in the matter is in pursuance of this Martial Law Order. It came into force after Constitutional Petition 279/1978 was decided on 2-10-1978 by a Division Bench of Quetta High Court as reported in PLD 1979 Quetta 179. 1n that case, the Court bad arrived at a conclusion that promulga--tion of Martial Law Order 54 in a way served as an acknowledgment by law-maker that no such jurisdiction existed before the promulgation/ enforcement of M. L. O. No. 54.
5. The Supreme Court of Pakistan in Begum Nusrat Bhutto's case had observed that all acts which tend to advance or promote the good of the people or which are required to be done for the ordinary orderly running of the State, fall within the scope of the law of necessity. The expression, "tends to advance" and "required to be done" shall be interpreted by the normal rule of interpretation and the word "tend" is to be construed to mean, "to have a tendency, conscious or unconscious to any end, object or purpose". This being so, it would not be necessary to show that all legislative measures and other acts of C. M. L. A. Should necessarily be shown to have a direct bearing at "advancing or promoting the good of the people". It would be sufficient if such measures or acts have a tendency, or are intended in any manner or are likely or purport to advance or promote the good of the people.
6. It could not be disputed that it was within the ambit of the legislative authority of the C. M. L. A. To issue M. L. O. No. 61. If a particular piece of legislation is entirely within the ambit of the Legislature's authority there could be nothing arbitrary in it so far as the Court of law is concerned. In these cases it was submitted that the C. M. L. A. Had the authority to amend the existing law by virtue of para. 5(1) of C. M. L. A. Order No. 1 of 1977, or alter it or even repeal it by promulgating an order. The judgment of the Supreme Court of Pakistan in Begum Nusrat Bhutto's case and in criminal appeal entitled as "Mr. Zulfikar Ali Bhutto v. The State" (PLD 1978 SC 40) are only the touchstones for testing the validity of any legislative measures of the present Martial Law authorities. Mir Hassan's judgment (PLD 1969 Lah. 786) does not bold the field in the present circumstances. The Supreme Court judgment is based on the concept of necessity and the following remarks made by D. Smith in his book "Constitutional and Administrative Law" as adopted therein, at page 715 may be usefully produced. These are that:- ". . . The principle of necessity rendering lawful what would other--wise be unlawful is not unknown to English law; there is a defence of necessity, albeit of uncertain scope in criminal law and in Constitu--tional law, the application of Martial Law is but an extended application of this concept . . . . ."
The Supreme Court was also pleased to observe in that judgment that Constitution of the Islamic Republic of Pakistan, 1973 had not been abrogated but only certain parts of it were being held in abeyance. Accordingly to fill the vacuum thus caused, the Supreme Court by applying the principle of legal fiction, invested the C. M. L. A. With the powers of the Legislature and the Executive under the Constitution, thereby imparting validity to M. L. Os. And M. L. Rs. The Supreme Court judgment at page 716 reads:- "(iii) That the Chief Martial Law Administrator having validly assumed powers 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."
Thereunder such acts have been detailed and in sub-paragraph (iv) it has been held that, "these acts or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require". These M. L. Os. Or M. L. Rs. Are thus in the nature of extra-Constitutional instruments and are extra-Special laws and, therefore, the Special Laws, to the extent of inconsistency or repugnancy, or for that matter where M. L. Os. Are applied, will give in and be subservient to these extra-Constitutional, instruments or extra-Special laws.
7. Undoubtedly the superior Courts have the power to judge the validity of the action of Martial Law authorities in the context of necessity, but' the C. M. L. A. Continues to be the initial Judge of the existence of necessity. He has validly replaced the Chief Executive and the Federal Legislature for the good of the people and for the ordinary orderly running of the State. Therefore, it will have to be admitted that he knows best whether necessity exists for doing an act or not. His action, therefore, unless proved) to be mala fide will have to be presumed to have been promoted by urgent need of the time and in good faith, i.e. By necessity.
8. In Muhammad Niaz's, case the rule of beneficial construction was followed but it was conceded that this rule would apply only where the language of a statute is ambiguous and that the two constructions are almost equally possible. But there is no ambiguity in M. L. O. No. 61 and, therefore, the benefit of the rule of beneficial construction cannot be claimed.
9. Arguments were advanced from the side of the petitioners that M. L. O. No. 4 and M. L. O. 61 are ultra vires of the Laws (Continuance in Force) Order, 1977. It is provided in clause (1) of Article 2 of the Laws (Continuance in Force) Order, 1977 that subject to the said Order or any Order made by the President or any M. L. R. Or M. L O. Made by the Chief Martial Law Administrator, Pakistan shall be governed as nearly as may be, in accordance with the Constitution. In that Article the jurisdiction of all the Courts in existence before the commencement of that Order has been preserved and they have been allowed to continue to function and exercise their respective powers. It was further argued that M. L. Os. 4 and 61 give untrammelled powers to Martial Law authorities and are ex facie discriminatory nieces of legislation and on that score they are invalid. Another argument that even if M. L. O. 4 (as amended by M. L. O. 37) is a valid law, then it would not cover those cases in which the offence was committed before the imposition of Martial Law, i.e. 5-7-1977.
10. To determine the validity` of a Martial Law Order, or Regulation, all that requires examination is whether the impugned Martial Law Order is such a legislative measure as could have been validly taken by the C. M. L. A. Within the scope of his authority as spelt out by their Lordships of the Supreme Court in Nusrat Bhutto's case, particularly at page 716 and Mr. Zulfiyar Ali Bhutto v. The State. It has to be clearly understood that in judging whether an action taken by the President or a Martial Law Administrator 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.
11. In Writ Petitions Nos. 65/1979, 77/1979, 78/1979 and 113/1979, decided on 14-3-1979, the main ground urged was that in view of the already existing laws, i.e. Petroleum Act, 1934 and the rules thereunder, any action against the petitioners should have been taken under the said Act/Rules.
The judgment in those writ petitions was recorded by my Lord the Chief Justice. The petitioners had been tried/convicted by the Summary Military Court, Peshawar for adulteration of diesel/petrol etc. The contention of the petitioners was repelled and their writ petitions were dismissed. In the present cases almost the same questions are involved.
12. It would, therefore, be not correct to say that whereas C. M. L. A.'s Order No. 1 is a Constitutional instrument, M. L. O. No. 4 or M. L. O. No. 61 issued by the. C. M. L. A. Are Sub-Constitutional measures.
The Martial Law is still in force and all Martial Law Orders issued by the C. M. L. A. Are extra- Constitutional measures and carry equal force. They emanate from the same force and are promulgated in exercise of the same extra Constitutional authority. It may be of interest to note that now no such d1stinction exists as was earlier pointed out at the time of the previous Martial Laws, between Martial Law Regulations and Martial Law Orders. The d1stinction between the two is no longer applicable under the existing Martial Law. The purpose of Martial Law inter alia being the welfare of the people curbing corruption would naturally fall within the aforesaid purpose and it would be incorrect to suggest that the law with which we are concerned is not for public good. The objection on the ground o absence of legal necessity is, therefore, completely devoid of any legal foundation. "It is not a jurisdictional defect in trial, if investigation is conducted by incompetent officer or the matter is brought to the notice of the Court in an irregular manner." (PLD 1960 Kar.
204).
13. About the pendency of the proceedings, there are numerous authorities, wherein it has been held that the substantive right such as the right of appeal comes into ex1stence when a civil action is brought and not when cause of action accrues. Similarly such right accrues in criminal cases when cognizance of an offence is taken by a Court and not before. Therefore, the procedure which is to be followed at the trial of an offender must be in accordance with the law of procedure in force on the date of the inception of the right and not the date of the commission o the offence because the date of the commission of the offence becomes irrelevant if the trial commences on or after the particular gate on which the M. L. O. In question was enforced.
14. It will be appreciated that the object of setting up Military Court of concurrent jurisdiction, apparently, is not to place any curb on the powers of ordinary/special criminal Courts but to ass1st and share load in such Courts and, therefore, it may be necessary in the national interest and to advance or promote good of the people that some of this load is shared by the Military Courts and cases decided expeditiously. It cannot be denied that the Pakistan Criminal Law (Amendment) Act of 1958 provides that for trial of public servants for offences under certain sections of the Penal Code or under the provisions of the Prevention of Corruption Act, 1947 prior sanction of the Government is to be obtained and that the accused is to be tried by a Special Judge and not by any other Court. But it will have to be admitted that Military Courts derive their power and jurisdiction from an extra-Constitutional legislative measure, namely, M. L. O. 4 as upheld by the Supreme Court. It cannot therefore, be curtailed by an old statute and that too of a sub- Constitutional nature, namely, the Criminal Law (Amendment) Act, 1958. Paragraph 2 of Martial Law Order No. 4 specifically ordains that, "Special Military Courts and Summary Military Courts shall have the powers to try and punish any person-for offences under any other law for the time being in force."
A Military Court will, therefore be competent to try alt offence A under the Criminal Law (Amendment) Act, 1958 as provided in M. L. O. No. 61. A Military Court is also empowered under clause (b) of para. 5 of Martial Law Order No. 4 to pass any sentence authorised by law under which the accused had been charged. However, certain limitations have been placed on the power of Summary Military Courts in this respect. The power conferred upon Military Courts to try any offence under any other law for the time being .In force emanates from Martial Law Order No. 4 issued by the C. M. L. A. The C. M. L. A. Is deemed competent to curtail the jurisdiction or power of any Court or even can abolish a Court. He holds the extra-Constitutional powers whereunder he could even place the 1973 Constitution in abeyance. In the case State v. Zia-ur---Rehman (PLD 1973 SC 69), the Supreme Court of Pakistan even went to the extent of holding that, "it is not the function of the Judiciary . . . . . To question the wisdom of Legislature".
15. As regards the issue of discrimination, the following observations made by the Supreme Court of Pakistan in the case Brig. (Retd.) F. B. Ali v. State (PLD 1975 SC 520) may be relevant. It was observed that, "thus in the field of criminal justice, a classification may well be made on the basis of heinousness of then crime committed or the necessity of preventing certain antisocial effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of State, maintenance of public order, removal of corruption from amongst public servants or for meeting the emergency-the principle is well recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable to persons or objects within a class. The mere fact that legislation is made to apply only to a certain group of persons and not to others does not invalidate the legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification".
16. In several cases from Lahore, different views have been expressed by various Judges and, therefore, the views expressed by Mr. Justice Zakiuddin Pal, J., in Muhammad Nawaz v. Summary Military Court (1979 P Cr. L J Note 23 at p. 15) will not hold any field. In any case, even in that judgment, the evidence recorded by the Summary Military Court was scrutinized. In the other case Abdur Rashid v. State (PLD 1979 Lah. 273) exception was taken to the transfer of a case pending before ordinary civil Court to the Summary Military Court for trial and in that context the very order of the transfer of the case was challenged because it had not been passed by any competent authority. In any case, the main question for determination in that case was, whether such transfer was necessitated on the grounds mentioned in the relevant Martial Law Order. But in the instant cases no such transfer is involved.
17. In Khudiadad v. Deputy Martial Law Administrator (PLD 1978 Quetta 177) the two points, which the Full Bench was required to consider, were as follows : --
(1) Whether M. L. O. 4 is a valid piece of legislation ; and
(2) If M. L. O. Was a valid piece of legislation, what is the extent and the nature of jurisdiction that a High Court can exercise while dealing with constitutional petitions challenging orders, findings and judgments of the Military Courts.
The Court unanimously came to the conclusion that Martial Law Order No. 4 is a valid piece of legislation. About the question of the powers of the High Court to grant relief in such like petitions, the Court observed, that--"in each one of these petitions we are dealing with prosecution in a Military Court. Such Courts are not inferior Tribunal qua the High Court. The High Court does not exercise appellate or revisional jurisdiction of these cases. Facts would rarely be adverted to except in such cases where manifest failure of justice is apparent". At page 184 of the report the Court held that, "it therefore, follows that while judging whether action of the Chief Martial Law Administrator fell within the scope of the law of necessity no subjective tests have to be applied, for the subjective satisfaction is to be arrived at by the Chief Martial Law Administrator who has taken upon himself the responsibility for the relevant action and also made a provision for methods and procedure for achieving the desired result". On the same page it was further observed in para. 14 that, "in such circumstances this Court is not to sit in appeal from the action of the Chief Martial Law Administrator to find out whether all or any, actions of his would be covered by unwritten law of necessity. Even otherwise we have known of several provisions in the various Constitutions of Pakistan when action was taken by an authority on ` being satisfied in regard to necessity of such action. It would indeed be perilous- for the Courts to embark upon an enquiry which by its very nature will be subjective to find out if a necessity existed for the taking of any action". It was also accepted by that Court that the Military Courts were dealing with the cases expeditiously and the sole aim of underlying establishment of Military Courts was to curb anti-social activities, smuggling, black-marketing, and such acts and offences which tend to destroy the object which underlie the imposition of Martial Law.
In the Karachi case reported as PLD 197-8 Kar. At page 736 it was observed that, "once the Martial Law is accepted as having been validly enforced, such power, of necessity, is to be conceded to the Martial Law authorities. The Regulations and Orders in question clearly fall within the purview of the powers exercise-able by the Chief Martial Law Administrator". In Mr. Zulflkar Ali Bhutto v. The State (PLD 1978 SC 40), it was observed that, "there existed some misconception as to the true implication of the decision of Begun Nusrat Bhutto's case in so far as it deals with the powers of the Chief Martial Law Administrator under the doctrine of necessity". Then the categories of various types of permissible actions were enumerated. The Division Bench of the Sind High Court in the said case candidly conceded that the Martial Law Regulations and the Martial Law Orders have been validly promulgated by the Chief Martial Law Administrator and no exception can be taken to the same.
They observed that, "the Martial Law Regulations and Orders would be covered by the definition of law as laid down in the judgment of the Supreme Court of Pakistan reported as PLD 1977 SC from page 397 onwards and since the same fall within the category of pronouncement of the will of the competent law-giver, the same are valid.
18. From the above discussion it becomes clear that it is no longer a controversial matter as to whether or not, the Martial Law Orders and for the purpose of the instant cases M. L. O. No. 4 or M. L.
O. No. 61 are valid laws. It would thus mean that by virtue of M. L. O. 61, the cases g which were exclusively tri-able by a Special Court/Special Judge or any other special Tribunal, can be tried by Military Courts, if so directed by the Martial Law Administrator and such cases, even if pending before the Special Judges/Special Courts can also be transferred to the Military Courts.
19. On that score the contention of the learned counsel for the petitioners would not be sustainable.
This being the main ground in almost all these cases, no other point was seriously urged nor in the already decided cases it could be proved that the trial and conviction of the accused petitioners by the Special/Summary Military Courts were based on no evidence. In that view of the matter, the conviction of the present petitioners and the other concerned petitioners in the connected writ petitions cannot be upset. So far as the petitioners who are yet to be proceeded against or against whom the trial has not been concluded, are concerned, they will have t face the charges and till we are in a position to find any defect in the trial; it may not be proper to hold at this stage that they cannot be proceeded against or tried by the concerned Military Courts. According to the learned Advocate-General sanctions in all the cases which were and are triable by the Special Courts/Special Judges have been obtained and therefore this too would not afford a ground for interference.
ABDUL HAKEEM KHAN, C. J.-----Since there is disagreement, the following question is referred for opinion by the 3rd Judge : --- Whether the powers, functions and jurisdiction of the ordinary Criminal Courts can be and have been validly taken away by 114. L. O. 4, as reconstituted, and of the Special Courts by M. L. O. 54, as reconsti--tuted, doctrine of necessity propounded in Begum Nusrat Bhutto's case notwithstanding.
SARDAR FAKHRE ALAM, J.---Due to cleavage of opinion among the learned Judges composing the Division Bench hearing this petition and the connected 15 other writ petitions all challenging the transfer of the cases of the petitioners from the existing Criminal Courts to the Summary Military Courts, the following question has been referred tome for opinion :- "Whether the powers, functions and jurisdiction of the ordinary Criminal Courts can be and have been validly taken away by M. L. O. 4, as reconstituted, and of the Special Court by M. L. O. 54, as reconstituted, doctrine of necessity propounded in Begun Nusrat Bhutto's case not--withstanding.
2. The facts involved in each writ petition have been brought out in detail in the judgment of my Lord, the Chief- Justice which need not to be repeated. The common feature of the petitions is that the petitioners who have been convicted or being tried by the Military Courts have challenged the transfer of their oases for trial to the Military Courts under M. L. O. 4 reconstituted or M. L. O. 54 reconstituted, whichever is applicable to their case. M. L. O. 4 as reconstituted by M. L. O. 37 apart from other things provides for the transfer of a case pending before an ordinary Criminal Court to Military Court, while hl. L. O. 54 as reconstituted by M. L. O. 61 authorises the transfer for trial of an offence exclusively triable by a Special Court, Special Judge, or any other type of tribunal, to a Military Court.
3. Two main points were vehemently urged and extensively urged by the learned counsel for the petitioners :- Firstly the Laws (Continuance in Force) Order, 1977 in sub-para. (2) of paragraph 2 recognizes the ex1stence of all Courts functioning at the relevant time and permits these to exercise their respective powers and jurisdiction and as such there was no legal justification to create parallel Military Court to discharge these functions. The Laws (Continuance in Force) Order, 1977 itself has recognized and preserved the existing legal order which includes the hierarchy of the ordinary Courts of land.
Second that the doctrine of necessity which allowed constitutional deviation for limited purpose and has given legitimacy to the present regime as approved by the august Supreme Court in Begum Nusrat Bhutto's case would not clothe the C. M. L. A. With the authority to issue the relevant Martial Law Orders authorising the transfer of the cases of the petitioners from the Ordinary Criminal Courts to the Military Courts for trial as it was not the judiciary which had failed to deliver the goods and necessitated the Constitutional deviation.
4. Before embarking upon the exercise which is limited to the question posed it will be advantageous to reproduce the relevant provisions of Laws (Continuance in Force) Order, 1977 : - 2.-(1) Notwithstanding the abeyance of the provisions of the Constitu--tion of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, the 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.
Explanation.-In this Order the term Constitution shall be so construed as if-
(a) In clause (3) of Article 75 of the Constitution for the words five years, the words, five years and six months, were substituted ; and
(b) Article 79, 95, 99 of the Constitution bad not been amended by any of the Acts amending it.
(2) Subject as aforesaid, all Courts in ex1stence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdictions : Provided that the Supreme Court or a High Court shall not have, the power to make any order of the nature mentioned in Article 199 of the Constitution against the Chief Martial Law Administrator, or a Martial Law Administrator or any person exercising powers or jurisdiction under the authority of either.
(3) The Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, and all proceedings pending in any Court, in so far as they are 'for the enforcement of any of those Rights, shall stand suspended.
5.-(1) Notwithstanding the abeyance of the provisions of the Constitu--tion, but subject to any Order of the President or Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator, all laws, other than the Constitution, and all Ordinances, Orders-in-Council, Orders made by the President, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in Pakistan or any part thereof, or having extra-territorial validity, shall so far as may be and with such adaptations as the President may see fit to make, continue in force until altered, amended or repealed by competent authority.
5. In support of the proposition that even if an area is under Martial Law but the civil Courts are functioning the trial of a civilian under the Ordinary Law of the Land by court-martial is not permissible, the following judgments of the Supreme Court of America were cited : --
(1) In Lloyd C. Dunban v. Duke Pada Khanamoku ((1945) 327 U S L ed 688) it has been observed "Courts and their procedural safeguards are indispensable to our system of Government. They were set up by our founders to protect the liberties they valued, Ex parte Quirin, (311 U S 10=87 L ed. 7, 65 S. Ct. 2). Our system of Government clearly is the antithesis of total Military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from any enemy. They were opposed to Governments that placed in the hands of one man the power to make, interpret and enforce the laws. Their philosophy has been the people's throughout our history. For that reason we have maintained legislatures chosen by citizens or their representatives and Courts and juries to try those who violate legislative enactments. We have always been especially concerned about the potential evils of summary Criminal trials and have guarded against them by provisions embodied in the Constitution itself. See Ex parte Miligan, 4 Wall. (U S) 2-18 L ed. 281 ; Chabmers v. Florida 309 U S 227, 84 L ed 716,.60 S.Ct. 472, Legislatures and Courts are not merely cherished American institutions; they are indispensable to our Government.
Military tribunals have no such standing. For as this Court has said before ; . . . The military should always be kept in subjection to the laws of the country to which it belongs, and that he is not friend to the Republic who advocates tae contrary. The established principle of every free people is, that the law shall alone govern ; and to it the military must always yield."
Further at page 702 it is noted :- "There can be no question but that when petitioners White and Duncan were subjected to military trials on August 25, 1942, and March 2, 1944, respectively, the territorial Courts of Hawaii were perfectly capable of exercising their normal criminal jurisdiction had the military allowed them to do so. The Chief Justice of the Supreme Court of Hawaii stated that after the month of April, 1942, he knew of "no sound reason for denial of trial by jury to civilians charged with criminal offence under "Laws of the Territory". The Governor of the Territory also testified that the trial of civilians before military Courts for offences against the laws of the Territory was unnecessary and unjustified by the conditions in the Territory when petitioner White was charged with embezzlement in August, 1942. In short, the Bill of Rights disappeared by military fiat rather than by military necessity.
Moreover, there is no question there as to the loyalty of the Hawaiian judiciary or as to the desire and ability of the judges to co-operate fully with military requirements. There is no evidence of disorder in the community which might have, prevented the Courts from conducting jury trials."
At page 331 of this report the Court was pleased to state :- "It is further said that the issuance of military orders relating to civilians required that the military have at its disposal some sort of tribunal to enforce those regulations. Any failure of civil Courts to convict violators of such regulations would diminish the authority and ability to discharge military responsibilities. This is the ultimate and most vicious of the arguments used to justify military trials.
It assumes without proof that civil Courts are incompetent and are prone to free those who are plainlty guilty. It assumes further that because the military may have the valid power to issue regulations there must be an accompanying power to punish the violators of those regulation the implicit and final assumption is then made that the military must have power to punish violations of all other statutes and regulation. Nothing is more incons1stent with our form of government, with its d1stinction between the power to promulgate law and the power to punish violations of the law.
Application of this doctrine could soon lead to the complete elimination of civil jurisdiction over crime.
Moreover, the mere fact that it may be more expedient and convenient for the military to try violators of its own orders before its own tribunals does not and should not furnish a constitutional basis for the jurisdiction of such tribunals when civil Courts are in fact functioning or are capable of functioning. Constitutional rights are rooted deeper than the wishes and desires of the military."
2. In Gurtis Reid, Superintendent of -the District of Columbia Jail v. Clarice B. Covert (354 U S 1=L ed 2d 1148) it has been laid down that under the grand design of the Constitution civilian Courts are the normal repositories of power to try persons charged with crimes against the United States.
Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil Courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections: "The business of soldiers is to fight and prepare to fight wars, not to try civilians for their alleged crimes. Traditionally military justice has been a rough form of justice emphasizing summary procedures, 'speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks. Because of its very nature and purposes the military must place great emphasis on discipline and efficiency. Correspondingly, there has always been less emphasis in the military on protecting the rights of the individual than in civil society and in civilian Courts.
Courts martial are typically ad hoc bodies appointed by a military officer from among his Subordinates. They have always been subject to varying degrees of "command influence". In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings, in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a Court-martial in the nature of the things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. Further on it has been observed: Ours is a government of divided authority on the assumption that in division there is not only strength but freedom from tyranny. And under our Constitution, Courts of law alone are given power to try civilians for'" their offences against the United States. The philosophy expressed by Lord Coke, speaking long ago from a wealth of experience, is still timely.
God send me never to live under the law of Conveniency of Discretion. Shall the Soldier and justice sit on one Bench, the Trumpet will not let the Cryer speak in Westminster Hall."
3. R. S. Sterling, Governor of the State of Taxes v. E. Constant in (287 U S 77 L ed 375) at p. 402 it is observed by the Supreme Court of America :-- "The question before us is simply with respect to the 'Governor's attempt to regulate by executive order the lawful use of complainant's properties in the production of oil. Instead of affording them protection in the lawful exercise of their rights as determined by the Courts, he sought, by his executive orders, to make that exercise impossible. In the place of judicial procedure, available to the Courts which were open and functioning, he set up his executive commands which brooked neither delay nor appeal. In particular, to the process of the Federal Court actually and properly engaged in examining and protecting an asserted Federal right, the Governor interposed the obstruction of his will, subverting the Federal authority. The assertion that such action can be taken as conclusive proof of its own necessity and must be accepted as in itself due process of law has no support in the decisions of this Court."
6. In support of their contentions much reliance has been placed by the learned counsel appearing for the petitioners on the pithy and all pervading observations of my Lord the Chief Justice of Pakistan at page 715 and onwards of the authority Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657) and these read :- "As a result, the true legal position which, therefore, emerges is :-
(i) That the 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 ;
(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution and have continued in their functions in spite of the Proclamation of Martial Law ; That 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 cons1stently 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 the 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 tile proclamation of Martial Law, namely, restoration of law and order, arid normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution ;
(iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations or Orders, as the occasion may require ; and
(v) That the superior Courts continue to have the 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 law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance.
This last point needs a little explanation. In the body of this judgment opinions of certain text-book writers and contemporary jur1sts have been quoted in support of the proposition that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period and for a specified and limited purpose, and does not seek to destroy the old Legal Order by merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of salus populi suprerna lex, the superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity.
There is yet another, and a stronger reason for holding that the power of judicial review continues.
The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of- the State. However, owing to reasons of necessity the executive and the legislative power now stands combined in one authority, for the reason that these two organs, of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March 1977, but no such considerations arose in regard to the judicial organ of the State.
Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away.
Next even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation, the fact remains that the ideology of Pakistan embodying the doctrine that Sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen Representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial I aw Authorities must continue to remain the superior Courts.
Lastly, the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the Subordinate Martial Law Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, make full provision for their adjudication. In some cases, interference has occurred even when the contending parties had already been litigating in the civil Courts regarding the same disputes. The necessity which justified the proclamation of Martial Law did not arise owing to the failure of the Courts to adjudicate on these matters. Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities; and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior courts."
7. In this context it will not be out of place also to reproduce the last but one para. At page 723 from the judgment of my Lord the Chief Justice :-- "While the Court does not consider it appropriate to issue any directions, as suggested by Mr. Yahya Bakhtiar, as to a definite time-table for the holding of elections, the Court would like to state in clear terms that it has found it possible to validate the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions 'conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his admin1stration as the interim Government of Pakistan."
8. When a question arose in the case reported as Mr. Zulfikar Ali Bhutto v. The State as to what actions of the new regime are permissible on the doctrine of necessity my Lord the Chief Justice of Pakistan was pleased to observe in the printed report at page 58 and onwards as follows :-.
"Before dealing with these submissions -on merits, it seems necessary to observe that there is apparently a misconception in the mind of the learned counsel as to the three implications of the decision of this Court in Begum Nusrat Bhutto's case, in so far as it deals with the powers of the Chief Martial Law Administrator under the doctrine of necessity. On page 716 of the printed report this Court has stated (already referred earlier)."
These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra-Constitu--tional action or intervention is validated on the ground of state or civil necessity, then, as a logical corollary it follows that the new Regime or Admin1stration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably, falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity. The word "necessity" has therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as d1stinct from its ordinary dictionary meaning.
It is also necessary to state that, as pointed out by this Court in a slightly different context in the case of Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313), under a constitutional system which provides for a judicial review of an executive action, it is a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of a judicial authority reveiwing executive actions to sit in appeal over the executive, or to substitute the discretion of the Court for that of the admin1strative agency. What the Court is concerned with is to see that the executive or admin1strative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied." We may add that the material in question may either be provided by the authority whose action is challenged, or it may be such of which the Court can take judicial notice, as was done by this Court in the recent case of Begum Nusrat Bhutto.
As to what is reasonable and what is not, the observations made by Hamoodur Rehman, J. (as he then was) in the case of Abul A'la Maudoodi v. The Government of West Pakistan.-( PLD 1964 SC 673) provide a useful guide, namely:--- "But what is the test that the Courts are to apply in determining what is or is not reasonable.
Obviously this cannot depend upon the notions of reasonableness of individual Judges, for, one Judge may well regard that as reasonable which another regards as unreasonable. Nor is the opinion of the Legislature conclusive on this question. The reasonableness must, of course, be judged by the standards of an ordinary prudent and reasonable citizen . . . . Reasonable is itself a relative terms. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances.
It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator 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 discre--tion 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 Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator or the President of Pakistan acting on his advices. As to what is reasonable or not in this context must be 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. These observations are, of coarse, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution."
9. Next reliance was placed on an authority reported as Muhammad Niaz v. Martial Law Administrator, Zone 'D' (PLD 1979 Quetta 179) wherein at page 188 it is mentioned:- "the trial of citizens for offences other than the offences created by Martial Law Regulation or Martial Law Orders, cannot take place before Military Courts unless such offences are committed while res1sting the Martial Law itself."
10. Mir Hussan's case (PLD 1969 Lah. 786) was also relies upon in this regard wherein while concluding the discussion in sub-para (vii) of para 37, my Lord Mr. Justice Mushtaq Hussain, J. (as he then was, observed:- "(vii) If Martial Law is enforced to quell riots and acts of indiscipline and to restore normalcy, ' order and democracy in times of peace the ordinary Courts continue to exercise their jurisdiction over civil and criminal matters and the same cannot be made the subject-matter of curbs. Whets the ordinary Courts are open and functioning, persons accused of offences against ordinary law have to be brought before them, and them alone, to be dealt with according to law and, to quote the learned Law Officers named above, there is not as we conceive, any right in the Crown to adopt any other course of proceedings."
11. The learned Advocate-General appearing for the respondents contended that proclamation of Martial Law was held to be valid by the Supreme Court of Pakistan in Begum Nusrat Bhutto's case.
The Laws (Conti--nuance in Force) Order which was designed to give effect to the purpose of proclamation was also approved in that case and M. L. O. 4 reconstituted and M. L. O. 54 reconstituted being legislative measures which could have been made under the 1973 Constitution and tend to advance the good of the people and were required for the ordinary orderly running of the State, cannot be declared as bad laws even if judged on the touchstone of doctrine of necessity.
12. To start with, the learned Advocate-General referred to an unreported judgment dated 14th of June, 1979 of the Supreme Court of Pakistan in Civil Appeal No. 99 of 1978. Filed by Martial Law Administrator, Zone 'D', Baluch1stan, Quetta and others against Muhammad Niaz. In this appeal the correctness of the decision of the Division Bench of Baluch1stan High Court in the case reported as Muhammad Niaz v. Martial Law Administrator was challenged. However, when the appeal came up for hearing the learned Deputy Attorney, General for Pakistan made a statement that the appellants had decided to try Muhammad Niaz respondent under the ordinary law applicable to the case and as such the appeal has become infructuous. While disposing of the appeal as having become infructuous the Supreme Court was pleased to observe:- "After giving consideration to the statements made before us by the learned Deputy Attorney- General for Pakistan, the Advocate-General, Baluch1stan and Mr. S. M. War, we have formed the opinion that in view of the decision taken by the authorities to try respondent. Muhammad Niaz under the ordinary law applicable to his case, namely the Criminal Law Amendment Act, 1958, the present appeal has indeed, become infructuous. In the circumstances, no useful purpose would be served by embarking upon an academic exercise to consider the propositions of law formulated in the leave granting order except to observe that the propositions and observations made by the High Court of Baluch1stan in the judgment under appeal, appear to be much too wide and prima facie open to exception and would require careful examination in a proper case. As already observed by this Court in its interim order dated I7th of December, 1978 the impugned judgment should be read as confined to his individual case alone."
Relying upon the observations made by the Supreme Court it was contended by the learned Advocate-General that the judgment relied on by the petitioners was not approved by the Supreme Court. I am afraid, it is not so, the judgment is still in the field. However, the august Supreme Court had left the important questions of law involved therein for careful examina--tion in a proper case.
13. Another unreported judgment dated 23-6-1979 of the Supreme Court in C. P. S. L. A No. SOR of 1979 Rehmat Shah and another v. The Presiding Officer, Summary Military Court No. 13, Peshawar, and three other connected petitions, was cited in which the special leave to appeal was refused and the petitions were dismissed in limine. These petitions were directed against the order of Division Bench of this Court passed in the four writ petitions whereby the convictions and sentences, of the petitioners under M. L. R. 30, were maintained and their writ petition Judges of the Supreme Court while refusing the leave to appeal were pleased to observe:-- "However, as in the High Court, the petitioners have pressed the petition on the ground that they challenged the vires of Martial Law Regulation No. 30 and the learned counsel's submission was that the promulgation of this Order and the setting up of Summary Military Courts was not justified by the doctrine of necessity laid down by the Court in Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan. The Constitutional questions raised by this submission are no doubt of very great importance, but we would leave them open for examination for an appropriate occasion and dismiss these petitions on the short ground that it is not a fit case for the grant of special leave.
Accordingly the petitions are dismissed."
14. Next the learned Advocate-General relied on the authority of the Supreme Court of Pakistan Mr. Zulfikar Ali Bhutto v. State (PLD 1978 SC 40) putting emphasis in particular on that portion of the printed report which has already been reproduced in the earlier part of this judgment.
15. Reliance was also placed on the case of Brig. (Retd.) F. B. Ali and another v. The State wherein it is held that the appellants who though had retired from the Army could be tried by the General Court-Martial after the amendments brought in the Army Act by Ordinance III of 1967. The observations of their Lordships appearing at page 531 of the report are pertinent to the contentions raised on behalf of the petitioners of their having been meted discriminatory treatment. These are:- - "Applying these principles to the facts of the present case, I am inclined to agree with the learned Attorney-General that there is valid classifica--tion in this case. A category has been selected on a rational basis, namely, those who seduce or attempt to seduce a member of the armed services from his allegiance or his duty. There is no possibility of any one picking and choosing a particular person so accused for trial in one manner and leaving others to be tried under the general law by reason of the amendment introduced by clause (d) in sub-- section (1) of section 2 of the Army Act. All persons accused of an offence of this nature, whether members of the defence services or civilians, are now triable under the Army Act, that is to say, that all persons, similarly situated or similarly accused, will now be liable to be tried under the discrimination. This is a valid classification which is by no means unreasonable or abitrary having regard to the object sought to be achieved, i. e. The prevention of subversion of the loyalty of the armed forces."
16. Few other authorities were also cited by the learned Advocate-General in support of his submission that the Military Courts have been validly constituted and have the jurisdiction to try the delinquents but these relate to the offences involving the violation of Martial Law Orders or Martial Law Regulations and no one has cavil with the proposition that the Military Courts have the jurisdiction to try and punish such offences.
17. I am of the view that the two judgments of the Supreme Court in the case of Begum Nusrat Bhutto and that of Mr. Zulfiqar Ali Bhutto aptly furnish the answer to the question posed. All acts and measures of the new Regime are to be tested on the touchstone of doctrine of necessity. When the existing Courts presided over by technocrats were allowed to continue and exercise jurisdiction even by the Laws (Continuance in Force Order, 1977 can it be said then that there still existed the State necessity to create Courts of parallel jurisdiction for the trial of few cases, the pick and choose of which was left to the discretion of the executive. It cannot be so, more so when I note that it has been observed in an unequivocal manner by the Supreme Court of Pakistan in Begum Nusrat Bhutto's case, that deviation from the Constitution was necessitated not due to the failure of the judicial organ of the State. The fundamental law governing the actions of the new Regime is the doctrine of necessity and those parts of the Constitution which are still operative.
18. This Court has not to sit in appeal over the executive or legislative, actions of the authority but then it has to be seen whether the impugned actions reasonably fall within the categories enumerated by the august Supreme Court in Begun Nusrat Bhutto's case and the reasonableness of the action is to be judged by the standards of an ordinary prudent and reasonable citizen also taking into consideration the prevailing circumstances and the object with which the action has been taken. Once it is conceded that the ordinary Courts of the land were properly functioning and were allowed to function there were no imperative reasons for the creation of parallel Courts to try the civilians charged for offenses under the ordinary law of the land. In this context the learned counsel for the petitioners inspired by the observations of My Lord Mr. Justice Nasim Hasan Shah in Begum Nusrat Bhutto's case, was not far wrong to urge that if `Halal' is readily available no reasonable person would go for 'Haram'. If the Court have not failed the country in discharging their duties it is not understandable how the trial of few cases by the Military Courts is going to promote the welfare of the people. The only argument that was repeatedly advanced in support of the establishment of the Military Courts was with regard to the expeditious disposal of cases which can hardly be equated with expeditious dispensation of justice.
For what has been said heretofore and with profound respect agreeing with the detailed reasons given and the findings arrived at by my Lord, the Chief Justice, answer to the question posed is in the negative.
In view of the authority of the Supreme Court of Pakistan Muhammad Sayyar v. Vice-Chancellor, University of Peshawar, and others (PLD 1974 SC 257) the case files are sent to the Division Bench seized of the matter for final decision.
In view of the answer given by the Referee Judge and the majority opinion, we accept all the petitions and set aside the conviction and sentences of the petitioners in Writ Petitions Nos. 286, 152, 258, 277, 322, 343, 342, 334, 387 and 320. This shall not, however, preclude the authorities from proceedings with all or any of the cases in accordance with procedures applicable. The parties shall bear their own costs.
NFGTP20% PNO 15% DCL 20% SRSCC20%