1. ' AGHA ALI HYDER, C. J.-These are petitions, which challenge the conviction and sentence awarded by the Summary Military Court, for offences under the Penal Code, Martial Law Orders, Criminal Law (Amendment) Act of 1947, and other Acts and Ordinances, and there arc some others, in which the findings of the Disqualification Tribunal constituted under Martial Law Order No, 31, as reconstituted under Martial Law Order No, 47, declaring the petitioners guilty of misconduct, which have been impugned before us. While we were hearing these matters, on the 18th of October 1979, the President promulgated the Constitution (Second Amendment) Order No,
21. Of 1979, by which Article 213-A was added. It reads as under :- ' In pursuance of the proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 [C. M. L. A. Order No, 1 of 1977], and in exercise of all powers enabling him in that behalf, the President is pleased to make the following order :-
1. Short title and commencement.-(1) This order may be called the Constitution (Second Amendment) Order, 1979.
(2) It shall come into force at once and shall be deemed to have taken effect on the fifth day of July, 1977.
2. Addition of new Article 22-A in the Constitution.-In the Constitution, in Part VII, after Article 212, the following new Articles, shall be added, namely :- "212-A. Establishment of Military Courts or Tribunals.-(1) Notwithstanding anything hereinbefore contained, the Chief Martial Law Administrator may, by a Martial Law Order, provide for the establishment of one or more Military Courts or Tribunals for the trial of offences punishable under the Martial Law Regulations or Martial Law Orders or any other law, including a special law, for the time being in force specified in the said Martial Law Order and for the transfer of cases to such Courts or Tribunals.
(2) The jurisdiction and powers of a Military Court or Tribunal shall be such as may be specified in a Martial Law Order issued by the Chief Martial Law Administrator.
(3) Notwithstanding anything hereinbefore contained, where any Military Court or Tribunal, is established, no other Court, including a High Court, shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of the Military Court or Tribunal extends and of which the cognizance has been taken by, or which has been transferred to, the Military Court or Tribunal and all proceedings in respect of any such matter which may be pending before such other Court, other than on appeal pending before the Supreme Court, shall abate."
2. ' Two days later, in paragraph 2, sub-paragraph (1) of Martial Law Order No, 4, the following additions were made- "(1) A Military Court shall have power and jurisdiction to try and punish any person for offences under any Martial Law Regulation, Martial Law Order or under any of the undermentioned laws notwithstanding that an offence is triable exclusively by a Special Court or Tribunal or Special judge or any other authority or body."
3. ' The number of laws, referred to above, was 35 in all, including Pakistan Penal Code, Criminal Law (Amendment) Act, Foreign Exchange Regulation Act, Customs Act, the Prevention of Smuggling Act, etc. Then, there was an addition in paragraph 3 of Martial Law Order No, 4, which reads as under:- "3-A. No Court, including a High Court, shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by, or which has been transferred to, such Military Courts or Tribunal and all proceedings in respect of any such matter of which may be pending before such other Court, other than an appeal pending before the Supreme Court, shall abate?
4. ' The question, therefore, arose, as to whether these proceedings had abated, or were to be disposed of on their merit?
5. ' The answer is to be found in the decision of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (1). It was observed therein, that in the wake of the general elections in March 1977, the country was on the brink of a precipice, because of the chaotic conditions prevailing all over, and the Chief Martial Law Administrator had to step in to move it from the impending holocaust. It was an extra constitutional step, all right, but it was only a phase of constitutional deviation dictated by imminent, absolute and extreme necessity. The imposition of Martial Law was a transient phenomenon, to preserve the Society and the nation, with the avowed objective of reviving the democratic institutions and way of life, once order and sanity had been restored. It was further observed, that the true legal position, in which the country found itself today was- "(i) That the 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 superior Courts continue to function under the constitution.
6. The mere fact that the Judges of the
(1) PLD 1977 SC 657 superior Courts have taken new oath after the Proclamation of Martial Law, does not in any way derogate from the position, as the Courts had been originally established under the 1973 Constitution, and have continued to function in spite of the Proclamation of Martial Law ;
(iii) That the Chief Martial Law Administrator having validly assumed power by means of an extra constitutional step, in the interest of the state of the welfare of the people, is entitled to perform all such acts, and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope 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 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 institution, under the 1973 Constitution.
(iv) That the acts, or any of them, may be performed or carried out by means of presidential Orders, Ordinances, Martial Law Regulations or Order, 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 action or any act or action of the Martial Law Authorities, if challenged in the light of the principles underlying the law of the necessity as stated above. The 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."
7. ' The contention advanced by Mr. Brohi, for the respondent, that the said order was a thing of the past, beyond resurrection, and that the Courts were now governed by the limitations placed upon them by the Laws (Continuance in Force) Order, 1977 was repelled. It was further observed, that "the superior court 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.
8. ' The implications of the judgment referred to above came up for clarification in Mr. Zulfikar Ali Bhutto v. The State (1). Their Lordships observed, as to be found on page 59 of the report: "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 exclusive or legislative authority concerned, nor substitute its own discretion for that of the competent
(1) PLD 1978 SC 40 authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of the judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumberated 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 advice. As to what is reasonable or not in this context must be judged by the standard of an ordinary, prudent and reasonable citizen, and will depend on the prevailing circumstances and the objects with which the action had been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution."
9. ' Mr. Abdul Sattar Shaikh, learned Additional Advocate-General started by saying that Article 212-A, did not contemplate doing away with the power of judicial review as exercised by the superior Courts. But if the proceedings pending here were to abate, that would be the logical corollary. So that platitude would hardly provide any sop. He further contended, as was done by Mr. Irshad Hussain Khan, Deputy Attorney-General, appearing for the State, that the Martial Law Administrator had been vested with the power to amend the Constitution, and Article 212 of the Constitution was already there creating Administrative Courts or Tribunals, with exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in the service of Pakistan, tortious acts of Government or local authority or any person in their employ acting in the discharge of his duties as such servant, and matters relating to the acquisition, administ ration and disposal of any property deemed to be enemy property. Sub-Article (2) thereof had an express oustor clause and powers under Article 199 could not be invoked at all. Mr. Irshad Hassan Khan also reminded, that the Courts were the creature of the Constitution. It is hardly necessary to delve into all that. It will be sufficient to refer to the case of Mr. Zulfikar Ali Bhutto v. The State (1) wherein it was observed, that it was, I believe, for the first time that a Chief Martial Law Administrator, in active control of the machinary of Government was declared to be subject to the power of judicial review vesting in the superior Courts of the country, under the Constitution." They also conveniently ignored, that Sub-Article (3) thereof provides for an appeal from a judgment, decree, order or sentence of an Administrative Court, or, Tribunal to the Supreme Court, if a substantial question of law of public importance is involved. So the ultimate Court in the country is there, to dispense Justice between citizen and citizen and the citizen and the State. Even the Chairman of the Tribunal is either a Judge, or qualified to be a Judge of the High Court and even the other members are equally competent and trained men, conversant with intricacies of service matters. Mr. Khalid Ishaq further urged that the laws which were to be dealt with, by theAdministrative Courts, or, Tribunals were to be the laws enacted by the Legislature. Unlike it, random cases, pertaining to offences under all the penal laws, apart from-the Martial Law Orders and Regulations, ,which ',were promulgated so far, or were to come in future, by the Chief Martial Law Administrator, and the Martial Law Administrator, and picked up by chance caprice, were to be tried by Army Officers without any pretention of any legal accumen, and intent only on the maintenance of disciplines, as high lighted in their Manual. Mr. Khalid Ishaq also read some passages from page 68 of Robert Sherill's Military Justice is to justice.
10. As
(1) PLD 1978 SC 125 #TBS (1) PLD 1969 Lah. 786 #TBE Military Music is to Music" and fervently hoped that the sphere of Military Courts would not extend beyond what it was originally meant to serve. Mr. Abdul Hafeez Pirzada added that in the absence of any rules, it was left to the whims of a Police Officer, and occasionally an Army Officer to pick up a case for trial before the Military Court, Summary or Special and an accused arraigned in a common offence could be awarded the sentence of whipping. And visited with a fine even in hundreds of thousand, which he could ill-afford to pay. Apart from what it meant to the citizen, whose misfortune it was to stand the trial there, it was destructive of judicial power. It was further urged that the Constitution envisaged trichotomy of power, the legislative organ of the State had ceased to exist, and there was calculated design to curb the powers of the Court, so that the executive alone was left in the field to walk like a Colossus. And this was being done by a Government which had received the mandate from the Supreme Court, to deviate from the constitution under the stress of state necessity, and for a limited period only.
11. ' Mr. Fazalur Rehman, who appeared on our request, as amicus cariae, expressed the opinion that this Second Amendment of the Constitution, inserting Article 212-A, could not hold field, in view of the judgment of Begum Nusrat Bhutto's case. Otherwise too, its intent was not to bar the jurisdiction of the superior Courts after a case had been disposed of by the Military Courts, or Tribunals, but only while it was pending. He, also referred to the oath of the Armed Forces, as to be found in the Third Schedule of the Constitution, which reads as under:- "I, do solemnly swear that I will bear true faith and allegience to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law".
12. ' In Malik Mir Hassan and another's case (1) while dealing with Martial Law Regulation 42, promulgated on the 4th of May, 1969, with a similar ouster clause, Mushtaq Hussain, J., (as his Lordship then was) held "when the Courts are sitting, there is no doubt that (i) it is a time of peace
(ii) they are sitting in their own right and (iii) not merely as licensees of the Military power. The jurisdiction of the ordinary Courts, therefore, continues to vest in them and the same cannot and has not been taken away by the Proclamation of Martial Law". However, since we have not heard the petitions on the merit, we would refrain from dilating on this aspect of the matter. For the present, all that we need say is, that the petitions have not abated, the High Court is left with the power of judicial review, and therefore the petitions are still before us.
13. ' Before parting with the cases, we would like to thank Mr. Fazlur Rehman for the valuable assistance rendered to us as amicus curiae and on such a short notice indeed.