PLD 1980 Lahore 206

DARWESH M. ARBEY, ADVOCATE vs FEDERATION OF PAKISTAN THROUGH THE LAW SECRETARY AND 2 OTHERS

CitationPLD 1980 Lahore 206

CourtLahore High Court

Judge(s)Aslam Riaz Hussain, Dr. Javed Iqbal, Shamim Hussain Qadri, Zakiuddin Pal,

ResultOrder accordingly

ASLAM RIAZ HUSSAIN, C. J.-Fourteen writ petitions bearing Nos, 777, 784, 787 788, 792, 794, 817, 825, 837, 867, 923, 953, 959 and 988 of 1977 were filed in this Court challenging, inter alia, the validity of:-

(1) the imposition of Martial Law in Lahore:

(2) the direction of the Federal Government under Article 245(1) of the Constitution, made on 21-4- 1977, whereby the armed forces of Pakistan were directed, subject to law, to act in aid of the civil power ;

(3) the order of the Chief Minister calling upon the Armed Forces to act in aid of civil power within the Municipal limits of Lahore District ;

(4) the Notification (No, S. R.

0. 353(1)177, dated 1-4-1977), whereby the powers under the Defence of Pakistan Rules were delegated to the Chief of the Army Staff and other Army Officers subordinate to him and authorised by him in this behalf ; and

(5) the vires of certain enactments i,e,, Act X and Act XI of 1977, made by the Federal Legislature, whereby the Defence of Pakistan Ordinance 1971, and the Army Act, 1952 were respectively, amended with effect from 21-4-1977. These enactments conferred considerable powers on the Army.

2. Notices were issued to the Federal Government in respect of the respondents subordinate to it and to the Advocate-General, Punjab, in respect of the Government of Punjab and officers subordinate to it. Notice was also issued to the learned Attorney-General of Pakistan.

3. While some of the writ petitions were still being argued, the Parliament amended the Constitution of Pakistan by the Constitution (7th Amendment) Act (XXIII of 1977), whereby amongst other Articles. Article 245 of the Constitution was also amended. The original Article 245 was renumbered as clause (1) of the said Article and three other clauses were added to it. After this amendment Article 245 of the Constitution reads as follows :- "245.-(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power, when called upon to do so.

(2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court.

(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245: Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceedings pending immediately before the day on which the Armed Forces start acting in aid of civil power.

(4) Any proceedings in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court, shall remain suspended for the period during which the Armed Forces are so acting."

V According to the respondents this amendment in the Constitution ousted or suspended the jurisdiction of this Court under Article 199 of the Constitution, to hear the aforementioned fourteen writ petitions. The Provincial Government also pleaded ouster of jurisdiction in the preliminary objections taken by it in the Written Statements, filed by the learned Advocate-General, which was adopted in toto by the Federal Government.

' The learned counsel for the petitioners, however, urged strenuously that the language used in the amending Act does not spell out an absolute ouster of the jurisdiction of this Court to hear and dispose of the aforementioned petitions.

4. Before we consider this question, we feel it necessary to state certain facts which form the background of the writ petitions, as this would facilitate the understanding of the contentions of the learned counsel for the parties and the discussion relating to the question before us.

5. As in all other cases, each side has taken a different view of the same facts, we shall, therefore, have to state the points of view of both sides.

6. According to the petitioners the facts are as follows :- ' The election to the National Assembly took place on the 7th of March 1977, after about two months of vigorous and intense election campaign. The two main contesting parties were, the Pakistan People's Party (hereinafter referred to as the P. P. P.), and the Pakistan National Alliance (hereinafter referred to as the P. N. A). The latter is an alliance of nine different parties which had joined hands to contest the election against the P. P. P. From a united platform. There was fervent and hectic activity all over the country and every day big, and sometime mammoth, processions were taken out by the followers of each side. Since the main slogan of the P. N. A. On which its election campaign was conducted was the enforcement of `Nizam-i-Islam' in the country, it excited the religious emotions of a large section of the people. The followers of the P. N. A. Conducted the campaign with extraordinary fervour and zeal and considering the response of large sections of the people of the country, they firmly believed that either their party shall win the election or would secure a considerably large number of seats, thereby reducing the majority of the ruling party in the National Assembly to less than two-thirds. But the result when announced on the television network on the same evening (i,e, on 7-3-1977), came as a great shock to them because it declared a landslide victory for the P. P. P. There was an immediate outcry that the election had been rigged on a massive scale and that the results announced by the television were fictitious and manipulated. As a measure of protest the P. N. A. Leaders directed their followers not to participate in the election to the Provincial Assemblies, which was to be held on the 10th of March 1977. The polling booths were deserted on the 10th of March and a very few persons went to cast their votes. The P. P. P., however, participated in the elections and, naturally, won most of the seats, as they were not contested. Only a few independent candidates were elected. Thereafter the P. N. A.

Leaders appealed for observation of hartaals and taking out of processions. They also demanded that the elections to the National Assembly be held all over again. This demand was, however, firmly rejected by the Prime Minister of Pakistan. But he offered that the elections to the Provincial Assemblies, in which the P. N. A. Had not participated, could be held again. This offer was turned down by the P. N. A. As an insufficient measure, and asked its followers to continue the agitation on the streets. This agitation grew in momentum from day-to-day. Section 144, Cr. P. C. Had been imposed in the entire country after the 7th of March 1977, but people, i,e, the followers of the P. N. A., continued to violate it as a measure of protest and took out huge processions in defiance thereof.

The Police and the F. S. F. (Federal Security Force) were employed, in succession, . To disperse the crowds ; tear-gas was used liberally and ultimately some persons were also shot at and killed. This, however, did not deter the public but simply aroused their passions and the demonstrations spread all over the country.

' According to the learned counsel for the petitioners, the direction of the P. N. A. To its followers was that the demonstrations were to be absolutely peaceful and violence was to be scrupulously avoided. But, it is asserted by them, that the ruling party deliberately introduced certain unruly elements in the processions who initiated violence against the law enforcing agencies so as to invite retaliation by the latter. It was also alleged that some goondas were hired by the ruling party who fired at the peaceful processions which naturally aroused the anger of participants of those processions and resulted in counter firing and violence. There were some incidents of stabbing and hand grenades were also thrown at Police trucks as a measure of retaliation against its actions.

Certain banks and some public buses were also burnt.

7. This very situation has been described by the respondents in altogether different light. According to them, after being defeated in the elections of the National Assembly, the P. N. A. Boycotted the elections to the Provincial Assemblies as a face saving device and in their frustration it started making a false accusation of large scale rigging in the elections of the National Assembly. Instead of challenging the correctness or otherwise of the election results in the forums constituted for that purpose under the Constitution, the P. N. A. Leaders whipped up frenzy amongst their followers and started an unlawful and illegal agitation by calling general strikes all over the country. The law enforcing agencies first tried to stop the demonstrations by `lathi charges' ; then by tear gassing and ultimately by the use of fire-arms. The intensity of the agitators increased from day-to-day, till the agitators went out of the hands of the P. N. A. Leaders. The demonstrations spread all over the country and there were incidents of large scale violence. The P. N. A. Made a call to its followers that on the 22nd of March there should be a "{{URDU TEXT}}" and no vehicle of any kind should be allowed to move on the roads or railway tracks so that all traffic is brought to a standstill. Appeals were also made not to pay taxes to the Government and to withdraw all money from the banks.

8. It was, submitted by the learned Attorney-General that the Federal Government could not allow this state of affairs to continue in the Province any further.

Such was the situation on the 21st of April 1977. The Police and the. F. S. F. Had already failed to curb the demonstrations of the people. The Federal Government, therefore, gave a direction to the Armed Forces under Article 245 of the Constitution to go to the aid of the Civil Power in the Punjab and Sind, at such places as the Chief Ministers of those Provinces indicate. The Chief Minister of Punjab called upon the Armed Forces to come and aid the civil power by restoring law and order in District of Lahore.

But according to a Press release issued by the Government in the Pakistan Times (Lahore) on the 24th of April 1977 (which was the first day on which the newspapers were published after the army had been called) it was particularly stated that 'Martial Law' had been posed in Lahore and some cities of Sind. Curfew was imposed within the limits of Lahore Municipal Corporation and Cantonment and the Armed Forces issued a number of Orders or instructions.

As already mentioned on the 16th of May 1977, while the learned counsel for the petitioners were still arguing the writ petition, when the Parliament passed the Constitution (7th Amendment) Act of 1977, amending Article 245 of the Constitution, purporting to oust the jurisdiction of this Court from challenging the validity of a direction made to the Armed Forces by the Federal Government and debarring it from exercising its jurisdiction under Article 199 in relation to acts done in any area in which the Armed Forces are acting in aid of the civil power, in pursuance of the aforesaid directions. In the Punjab only such area was the District of Lahore. The counsel for the petitioners, however, controverted this fact and urged that the amendment, as worded, does not oust the Court's jurisdiction under Article 199. They urged further that the present exercise by the Armed Forces is not 'Martial Law' in any of the accepted meanings of the term and that Martial Law cannot be imposed under the present Constitution which provides that within the country the Armed Forces can only act 'in aid of the civil power' and cannot override or displace it. They urged that in fact the Military had displaced the civil Government in certain spheres.

9. The case of the Government, on the other hand, was that although Martial Law had been imposed, the Armed Forces were only acting in aid of the civil power, within the authority conferred upon them by law and had not, in any manner, superseded the civil power. It was stated that this was evident from the fact that the Courts were functioning, the Assemblies had been convened, the Cabinet was meeting and the Civil Secretariat was functioning.

Since the answer to the question as to whether jurisdiction of this Court has been ousted by the 7th Amendment would hinge largely on the question as to whether the operation launched amounted to calling the army in aid of civil power simpliciter or whether it was an imposition of Martial Law, it would have to be determined whether there is any scope whatsoever for imposition of Martial Law under the present Constitution.

10. Having heard the learned counsel for the parties and the learned Attorney-General for Pakistan, on the above-noted questions at length, we proceed to consider the above-noted questions. The main contentions urged by the learned counsel for the petitioners were as follows :-

(i) that the word "directions" occurring in clause (1) of Article 245 of the Constitution relates only to a situation where the Armed Forces are required to defend Pakistan against-

(1) external aggression, or

(2) threat of war ; and that it does not apply to calling of the Armed Forces in aid of civil power ; that the later exercise did not depend on a direction of the Federal Government but only on the presence of a law authorising the civil authorities to call the Armed Forces to its aid whenever there is need for it;

(ii) that if the word "direction" occurring in the said clause was to apply even to the calling of the Armed Forces in aid of the civil power, then by necessary implication, this clause would be deemed to have repealed sections 129, 130 and 131 of the Cr. P. C. Which authorise a Magistrate to requisition army aid in situations of necessity etc. And, as a result, the Provincial Government could not have called the Armed Forces without such directions of the Federal Government, as it did in the cities of Multan and Sialkot. Consequently, all the acts done by the Armed Forces in those districts are illegal;

(iii) that the expression "subject to law", occurring in clause (1) of Article 245 of the Constitution, refers to laws already in existence under which the Armed Forces could be called and do not include any laws which are made subsequently. Protecting this point it was submitted that even if passing of any other laws was envisaged, the scope of those laws should be restricted, simply to acting "in aid of civil power" and should not be allowed to exceed that concept ;

(iv) that the direction under Article 245(1) by the Federal Government to the Armed Forces on 21- 4.1977, is defective and beyond the scope of the Article itself inasmuch as it authorises the Chief Minister of a Province to specify the area in which the Armed Forces are to act, because-

(1) it has the effect of placing the Armed Forces under the directions of the Chief Minister instead of the Federal Government ; and

(2) it would enable the Chief Minister of the relevant Province to oust or take away the writ jurisdiction (under Article 199) of the High Court in relation to any area in the Province, by an executive fiat i,e,, by merely calling the Armed Forces for 'aid' in any particular area at his whim or caprice.

(v) that the order of the Chief Minister dated 21st April 1977, calling upon the Armed Forces to act within the revenue limits of Lahore District is bad in law inasmuch as it gives the Armed Forces unbridled power to act in any manner or exercise all such powers which it decides to perform or exercise in its own discretion, irrespective of any laws on the subject. For a proper understanding of this contention the order in question is reproduced below :- Order of Chief Minister dated 21-4-1977: "Pursuant of the order dated 21-4-1977 of the Federal Government, I do hereby call upon you to act in aid of civil power and exercise such powers and perform such functions as may be deemed necessary for maintaining law and order and security within the revenue limits of Lahore District."

(Underlining is ours).

The contention was that the above order gives a free hand to Armed Forces to act independently of the civil Government even though it may amount to supersession of the civil power;

(vi) that amendment in the Army Act (by Act X of 1977), whereby a new clause (iii) has been inserted in section 2(1)(d) of the said Act is bad in law and ultra vires of the Constitution for the following reasons-

(a) that it gives the Armed Forces exclusive jurisdiction to try the civilians of any area of the Province where the Armed Forces have been called and are acting in aid of the civil power, for a large number of offences under the Pakistan Penal Code and other Penal Laws mentioned in the amending Act irrespective of there being any nexus or connection between those offences and the purpose for which the Armed Forces have been called i,e,, for restoration of law and order. This amounts to superseding or replacing of the civil power on the judicial side ;

(b) although the Legislature can create a new forum or confer any judicial powers on an existing forum, yet the defect in the present case, lies in the 'lack of capacity' in the Armed Forces, to be conferred any judicial powers with regard to the trial of the civil population of the country for any offence whatsoever, when the scope and sphere of their authority is constitutionally to be restricted to acting in aid of civil power and not to replace it ;

(c) that by its very nature the Army Act is meant to regulate the conduct of the members of the Armed Forces and try the personnel of the Armed Forces or any persons though not employed in the Army but having direct connection or nexus with the Armed Forces, for certain kind of offences.

The said Act cannot, therefore, be amended in such a manner as to give the Army power to try and convict civilians not connected with the Armed Forces, by any device. Any amendment seeking to empower the Courts Martial to try civilians for civil offences, irrespective of such civilians having any connection with the Armed Forces would amount to a fraud on the said Statute;*

(vii) that the order of delegation of powers under the Defence of Pakista n Rules, 1971, is bad, because it not only delegates the powers of Central Government to the Chief of the Army Staff but also, gives him the power to sub-delegate the same to any officer of his choice, subordinate to him. Such sub-delegation is not provided for by section 3(4) of the Defence of Pakistan Ordinance ;

(viii) that the Constitution 7th Amendment) Act, 1977, does not have the effect of taking away the jurisdiction of this Court because-

(a) the word "direction" under Article 245(1) does not relax to the calling of the Armed Forces to 'act in aid of civil power' and challenging of such a direction cannot, therefore, be deemed to have been ousted ; ,(b) that since the Armed Forces are, in fact, nor acting in aid of the civil power in the District of Lahore, but supersession of the same, the main condition precedent mentioned in clause (3) of the amended Article 245 of the Constitution is not fulfilled;

(ix) that there is no provision for imposition of Martial Law in Article 245 of the 1973 Constitution, or as a matter of fact under any other Article or law, and that the present exercise of the Armed Forces cannot, therefore, be called Martial Law. This exercise, if found to be valid and within the ambit of law, it could only be termed as "acting in aid of the civil power."

' The last contention was raised without conceding that the Armed Forces were in reality acting in aid of the civil power, because according to the learned counsel for the petitioners, the Armed Forces were acting in supersession of the civil power.

11. It may be mentioned here that the learned counsel for the petitioners conceded that it was always open to the Government in any country to call the Army Forces in aid of the civil power in a situation of emergency beyond the control of the civil power and nobody has ever taken any objection to the Armed Forces having been called for such purposes, e.g. In the case of natural calamities, like devastating floods or earthquakes etc., or even in case of actual or threatened insurrection, anarchy or widespread chaos. But, according to the learned counsel for the petitioners, Article 245(1) of the present Constitution had totally ruled out the imposition of Martial Law or an exercise by the Armed Forces which would permit them to override or displace the civil Government. They argued that any "law" purporting to authorise them to do so would ipso facto be bad for contriety with the Constitution, because Article 245(1) of the Constitution only permits the Armed Forces to 'act in aid of the civil power' and not in supersession thereof.

' The learned Atturney-General replied to all these contentions at considerable length. The relevant contentions shall be mentioned while discussing the same.

12. We feel that many of the above-noted contentions have considerable weight but we are of the view that the present question of ouster of jurisdiction by Constitution (7th Amendment) Act, 1977 and the legality of the imposition of Martial Law under the present Constitution can be decided only by considering and deciding the contentions reproduced at paras. Nos, 8 and 9 above. We do not, therefore, propose to touch the other contentions at this stage. These may, however, be considered subsequently if and when the main petitions come up for hearing or in any other appropriate case.

13. Before we proceed to consider the question as to whether Constitution (7th Amendment) Act of 1977, has completely ousted the jurisdiction of this Court under Article 199 of the Constitution, it would be proper to mention the steps taken by the Government and the Legislature for calling upon the Armed Forces 'in aid of the civil power,' and Imposition of Martial Law'. These are as follows :-

(a) On 21-4-1977, the President of Pakistan amended the Proclamation of Emergency which was already in existence, in exercise of his powers under clause (1) of Article 236 of the Constitution. The Proclamation of Emergency which had been issued on the 23rd of November 1971, in view of the danger to the security of Pakistan by the threat or war or external aggression, was still in force by virtue of the provisions of Article 280 of the Constitution. The following words were added to it by the above-mentioned amendment : and by internal disturbances beyond the powers of a Provincial Government to control."

' As a result of this amendment in the Proclamation the reasons for the Emergency are now :-

(1) Danger to security of Pakistan or any part thereof by the threat of war or external aggression; and

(2) by internal disturbances not controllable by the Provincial Government of Punjab or Sind.

' In view of the reason mentioned at No, (2) above, the Federal Government, on the same day, issued a direction to the Armed Forces under Article 245 (now Article 245(1) of the Constitution, which reads as follows :- "245.-(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power, when called upon to do so."

(b) On the same day the Chief Minister of Punjab passed the following order, calling upon the Armed Forces to act in aid of the civil power in the District of Lahore, which reads as follows :- "Pursuant to the Order dated 21st April 1977 of the Federal Government, I do hereby call upon you to act in aid of civil power and exercise such powers and perform such functions as may be deemed necessary for maintaining law and order and security within the revenue limits of the Lahore District."

(c) Again on the same day, the Federal Government delegated its powers under the Defence of Pakistan Rules, to the .Chief of the Army Staff, and "officers subordinate to and authorised by him in this behalf", in the area in which the Armed Forces were, for the time being, acting in aid of the civil power.

(d) On the same day, a Presidential Order was issued suspending enforcement of Fundamental Rights provided under Articles 9, 10, 14(1), 15, 16, 17, 18, 19, 23, 24 and 25 of the Constitution, for the period during which and in the areas in which the Armed Forces were acting in aid of the civil power.

(e) On the same day section 2 of the Pakistan Army Act of 1952 was amended by Ordinance No, XVIII of 1977. Subsequently on 29-4-1977, the Pakistan Army Act was further amended by Act X of 1977, which replaced the above-mentioned Ordinance. This amendment was given retrospective effect from 21-4-1977, and was extended only to areas where the Armed Forces were, for the time being, acting in aid of the civil power in pursuance of Article 245 of the Constitution (except clause

(b) of section 2 which extended to whole of Pakistan it was to remain in force), only till such time the Armed Forces were so acting in those areas.

' By this Act two amendments were made in section 2 of the Pakistan Army Act.-

(i) a new paragraph i,e,, paragraph (iii) was added to clause (d) of section 2(1) ; and

(ii) another clause i,e, clause (dd) was added after clause (d) in section 2(1) of the said Act.

' After this amendment, paragraph (iii), clause (d) -4 section 2(1) of the Pakistan Army Act, 1952, reads as follows :- Section 2(1)(d).-The following persons shall be subject to this Act, namely :-

(a) ...................................

(b) ............................

(d) Persons not otherwise subject to this Act, who are accused of-

(1) ..................................

(ii) ........

(iii) an offence punishable under section 123, 123-A, 124-A, 143, 144 Pakistan Penal Code (Act XLV of 1860), or the Pakistan Army Ordinance, 1965 (W. P. Ordinance XX of 1965), or the Explosive Substances Act, 1908 (VI of 1908), or the Defence of Pakistan Ordinance, 1971 (XXX of 1971), or any rule made thereunder or the High Treason (Punishment) Act, 1971 (LXVIII of 1973), or the Prevention of Anti-National Activities Act, 1974 (VII of 1974), or an attempt of conspiracy to commit, or an abetment or, any of the said offences:"

' By section 4 of the Act X of 1977, the above-noted offence? Were made exclusively triable by the Courts Martial. This section reads as follows:- "4. Certain offences exclusively triable by a Court Martial.-Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898). The Pakistan Army Act, 1952 (XXXIX of 1952), or any other law for the time being in force, the offences mentioned in paragraph (iii) of clause (d) and clause (dd) of subsection (1) of section 2 of the said Act shall be triable exclusively by a Court Martial held thereunder : ' Provided that an officer authorised in this behalf by the Chief of the Army Staff may, by order in writing, transfer any such case for trial to any Court or tribunal of competent jurisdiction.

' By section 3 of the said Act, section 88 of the Pakistan Army Act was amended.

' The net result of these two amendments is that the civilian population of Lahore District, which was not previously amenable to the Army Act, was now to be tried exclusively by Courts Martial for a large number of offences under the Pakistan Penal Code as well as for certain other Acts mentioned in paragraph (iii) (reproduced above). No doubt, an army officer authorised in that behalf by the Chief of the Army Staff could, in his discretion, transfer any such case for trial to an ordinary Court or tribunal of competent jurisdiction, but the civil population of Lahore District was deprived of its right of being tried for such offences by the ordinary criminal Courts.

(e) Another step taken was that the Defence of Pakistan Ordinance was amended by Act XI of 1977, whereby, inter alia, a new section 15-A was inserted in the said Ordinance, which reads as follows :- "15-A. Power to prohibit persons from moving out of doors.-(1) Any officer of the Armed Forces of Pakistan by whom the powers cceferred upon the Federal Government by any rules made under section are for the time being exerciseable may, by order, direct that, subject to any exemption specified in such order, no person present within any specified area shall, between such hours as may be so specified, be out of doors except under the authority of a written permit granted by an authority or person so specified.

(2) If any person contrevenes any order made under subsection (1), he shall, without prejudice to the provisions of subsection (3), be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.

(3) Any officer of the Armed Forces of Pakistan, or any officer of the Federal Security Force or any other armed forces operating under the command of an officer of the Armed Forces of Pakistan, engaged in enforcing compliance with an order made under subsection (t) may shoot at sight any person contravening the order on as to cause the death of, or other harm to, such person, if in his opinion, which shall be final. It is necessary to do so."

' It would be noticed that subsection (3) above provides for shooting at sight of persons violating any order in the nature of 'curfew' passed under subsection (1) of section 15-A of the Ordinance.

' It was argued that the above-noted enactments and the orders under section 3(4) of the Defence of Pakistan Ordinance, were passed in order to confer powers on the Armed Forces to do certain acts so that it could be said that they were acting "subject to law" as required by Article 245 of the Constitution.

14. We now proceed to consider whether the Constitution (7th Amendment) Act, 1977, has the effect of ousting the jurisdiction of this Court under Article 199 of the Constitution. This Article, as amended, may be reproduced below, on pain of repetition : "245.(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power, when called upon to do so.

(2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court.

' It was vehemently contended that under Article 245(1) the Federal Government could issue direction to the armed forces only for defending Pakistan against : (i) external aggression, or (ii) threat of war and that the expression "under the directions of the Federal Government" does not extend to the calling of the Armed Forces in aid of the civil powers.

' The learned Attorney-General, on the other hand, contended that the said expression applied not only to situations where the Armed Forces were required to defend Pakistan against external aggression or threat of war but a direction from the Federal Government is necessary even when the armed forces are required to be called to act in aid of the civil power.

' The correctness or otherwise of those two views depends on the cons tructions of the words used in Article 245(1) as well as the placing o the 'commas' therein. Considering the placement of the commas in the said clause it would appear that the expression "under the directions of the Federal Government" relates only to defending of Pakistan against external aggression or threat of war and not to the remaining portion con cerning its duty to act, in aid of the civil power.

' An argument which would strongly support this view is that if the inssuance of a 'direction' by the Federal Government in aid of the civil power, then it would not be permissible for any District Magistrate to call upon the armed forces in aid of the civil power in his district under section 129 of the Criminal Procedure Code or for the Military to act in aid of civil power under sections 130 and 131, Cr. P. C. In fact, if a direction under Article 245(1) is a condition precedent for calling the armed forces in aid of civil power then by necessary implication, it must be deemed to have repealed Chapter IX of the Criminal Procedure Code in its entirety. But we notice that the District Magistrates of Multan and Sialkot have, in fact, called upon the Armed Forces to control the law and order situation in those districts without any direction by the Federal Government. Can it, then, be said that the armed forces have acted illegally in those districts?

' We, however, notice that clause (2) of Article 245 of the Constitution provides a blanket cover to a direction issued by the Federal Government under clause (1) of the said Article inasmuch as it provides that no direction under Article 245(1) shall be called in question in any Court, irrespective of the fact whether it relates to threat of external aggression or war or to calling of the armed forces to act in aid of civil power. As such we are of the view that this Court has no jurisdiction to pronounce upon the validity of the directions in the present case.

15. The position with regard to clause (3) of Article 245, is, however, different because the wording of this clause does not spell out a naked ouster of jurisdiction of this Court under Article 199 but the same has bee C made contingent upon the existence of certain factors mentioned in that clause.

The clause in question may be reproduced again for facility of reference :- "A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245."

' It would be noticed that this clause provides-

(i) that the ouster is only to be in relation to certain areas and not the whole of the country or the Province ;

(ii) that the areas should be such where, for the time being, the Armed Forces are acting in aid of the civil power ; and

(iii) that the Armed Forces should be so acting in pursuance of a direction under Article 245(1) of the Constitution.

' In other words the above-noted three jurisdictional facts must exist, before the jurisdiction of this Court under Article 199 of the Constitution can be said to have been ousted or withdrawn.

' This was also the stand of the learned Attorney-General himself. He admitted that under clause

(3) the ouster of the jurisdiction of the High Court depended upon the presence of three jurisdictional facts, and that it bad to be seen :-

(i) Whether there is a direction of the Federal Government under Article 245(1) ;

(ii) Whether the Armed Forces start acting in aid of the civil power in pursuance of that direction ; and

(iii) Whether the area has been specified and identified, where they are so acting.

' He submitted that if these three conditions are fulfilled the jurisdiction of this Court stands ousted.

He urged further that the Courts are the creature of Constitution, and they have no jurisdiction per se. He submitted that jurisdiction is not inherent in Courts but is conferred upon them by Constitution or law and can similarly be withdrawn or curtailed by amendment of the Constitution or the relevant law. For this he relied upon Asma Jilani v. Government of Punjab and State v. Ziaur Rehman. He, however, pointed out that there is a distinction between 'jurisdiction' and 'judicial power'. He submitted that judicial power is inherent in a superior Court. It is not conferred by the Constitution but exists by virtue of the fact that it is a superior Court set up by the Constitution itself.

He submitted that Judicial Power is the right of the superior Courts to interpret the Constitution and the law and to say as to what a particular provision of Constitution or the law means (or does not mean), even if it be a law or provision seeking to oust the jurisdiction of the Court. For this proposition he relied on the observations of the Supreme Court in the case of Asma Jilani v.

Government of Punjab and State v. Ziaur Rehman. On the basis of these observations he frankly conceded that it is the Court itself which has to interpret the amended provisions of Article 245 of the Constitution and determine as to whether or not the same have resuited in the ouster of the jurisdiction of this Court under Article 199 of the Constitution and that it is the Courts and the Courts alone which have the power to determine whether the three pre-conditions or the jurisdictional facts mentioned above have, in fact, been fulfilled or establishad.

' The learned Attorney-General submitted further that under Article 245 of the Constitution the Armed Forces are required to act in aid of civil power, subject to law. He submitted that the expression 'subject to law' occurring in Article 245(1) does not mean that the Armed Forces can be called only under the provisions of some pre-existing law but means that every action of the Armed Forces during the exercise of aiding the civil Government should be backed by some valid legislation. He submitted that the intention of the framers of the Constitution by inserting the words `subject to law' in Article 245 of the Constitution was that the Armed Forces should not act arbitrarily but in accordance with authority or power conferred upon them or within the limits placed on them by such laws. He pointed out that in the present exercise the Legislature had promptly conferred wide powers on the Armed Forces which were considered necessary for carrying out the operation for which it had been called by the civil Government. He submitted that these laws, inter alia are :-

(i) Defence of Pakistan Rules, powers under which have been delegated by the Federal Government to the Chief of the Army Staff and any officer authorised by an order under section1 2 3(4) of the Defence of Pakistan Ordinance ;

(ii) Act XI of 1977, whereby the Defence of Pakistan Ordinance has been amended and a new section 15-A has been added to it, so as to enable the Armed Forces to prohibit people from moving out of doors in certain areas and at times specified by the relevant army officer and to authorise an officer of the Armed Forces to "shoot at sight" and person contravening such an order, so as to cause death ;

(iii) Act X of 1977, whereby the Pakistan Army Act, 1952, has been amended empowering the Army Forces to try civilians for a large number of offences through Courts Martial, to the exclusion of the ordinary criminal Courts.

16. We have carefully considered the above-mentioned contentions raised by the learned Attorney-General, but while doing so we have kept in view the principles enunciated by the Supreme Court of Pakistan in Fazalul-Qadir Chowdhry v. Muhammad Abdul Ilaq and subsequently relied upon by it in the case of Ziaur Rehman with regard to the construction of provisions seeking to oust the jurisdiction of the superior Courts, namely, that they are to be construed strictly with a pronounced leaning against ouster.

17. We are inclined to agree with the submission of the learned Attor ney-General that the expression 'subject to law' occurring in clause (1) of Article 245 of the Constitution, does not necessarily refer to pre-existin laws, e.g. Chapter IX of the Criminal Procedure Code, under which the Armed Forces could be called to act in aid of the civil power but also to laws which, though enacted simultaneously with or subsequent to the `direction' of the Federal Government, confer powers on the Armed Force to perform the functions for which they have been called and to limit and circumscribe their powers so that they cannot act arbitrarily, whimsically o capriciously without any control whatsoever. It flows from the arguments of the learned Attorney-General himself that such laws cannot be of a nature which instead of circumscribing or limiting their powers and placing them under the control of the civil authorities, in fact, place them in a position superior or dominant to that of civil power or bestow upon them such power and authority that, instead of acting in aid of civil power, the Armed Forces, in fact, started acting in supersession or replacement thereof.

18. With this principle in view, we proceed to consider as to whether or not the three pre-conditions spelt out from the wording of clause (3) of Article 245 of the Constitution or the three jurisdictional facts mentioned by the learned Attorney-General.

' The first jurisdictional fact mentioned by the learned Attorney-General is the presence of a 'direction by the Federal Government issued to the Armed Forces under clause (1) of Article 245 of the Constitution. We notice that in the present case such a direction was issued vide S. R.O.352(1)177, dated 21-4-1977. As already observed above by us, a blanket protection has been given to this 'direction' by clause (2) of the amended Article 245 of the Constitution. As a result, irrespective of the fact as to whether or not the 'direction' is legally correct, we are of the view that its validity cannot be questioned by any Court.

' The second jurisdictional fact the presence or otherwise of which is required to be ascertained, according to the submission of the learned Attorney-General, is whether Armed Forces are "acting in aid of civil power" in pursuance of that direction. It would be noticed that the most crucial point to be determined with regard to this pre-condition or jurisdictional fact is as to whether the armed forces are actually "acting in aid" of the civil power or in supersession thereof. The extent of the powers conferred on them by various enactments and the Defence of Pakistan Rules would be one of the determining factors in this connection.

' For determining as to whether or not the above-noted enactments and orders have, in fact, placed the Armed Forces in such a position whereby they have superseded or displaced the civil power, we have not merely to consider each of these laws or conferment of power individually but3 have also to see the cumulative effect of the entire exercise beginning with the direction of the Federal Government followed by the orders of the Chief Minister of Punjab; the simultaneous enactment of the above-noted laws ; delegation of powers under the Defence of Pakistan Rules and the various actions actually taken by the Armed Forces. All these have to be examined in their entirety in conjunction with the actions actually taken by the Armed Forces, and not only in isolation from each other. As a result, if any of the above-mentioned steps taken by the Government or the enactments conferring powers upon the Armed Forces is such as can be said to have placed them (the Armed Forces) in a dominant position, enabling them to actin supersession or displacement of the civil power, then it can be legitimately said that taking the entire exercise together, the Armed Forces are not "acting in aid of civil power" but are acting in supersession or displacement of the same.

' In this connection the most pertinent cnactment is Act X of 1977 whereby some of the provisions of the Pakistan Army Act, 1952, have been amended. The relevant portions have already been reproduced in para. 13 above and'need not be repeated. By this Act section 2(1) of the Pakistan Army Act, 1952, was amended so as to add a new paragraph (iiii) to clause (d). The effect of this amendment is that the entire civil population of the Lahore District which was previously not subject to the jurisdiction of the Pakistan Army Act, has been subjected thereto and can now be tried under the Army Act for a large number of offences under the Pakistan Penal Code and other Penal Acts, mentioned in that paragraph.

' By another amendment in the same Act. Vide section 4, exclusive jurisdiction has been conferred on Courts Martial, to try, convict and sentence, the civilians of Lahore District for the above-noted offences. As a result of these two amendments, the ordinary criminal Courts of Lahore no longer have the jurisdiction to try the civilians or the civil population of the Lahore District for such offences unless, of course, any particular case is transferred to them by an authorised Army Officer in his arbitrary discretion.

' It could be forcefully contended that such sweeping amendments, bringing the entire civil population of the province (or any parts thereof selected by the relevant Chief Ministers, in their arbitrary discretion, within the ambit of the Pakistan Army Act and making it (the civil population subject to its provisions is totally against object and reasons for which that Act was enacted. The Pakistan Army Act is primarily meant for' maintaining the internal discipline of the personnel of the Armed Forces or the civilians directly connected with them, e.g., camp fellows etc. No doubt some categories of civilians who were not previously subject to the Army Act were made subject to it by an earlier amendment whereby clause (d) with paragraphs (i) and (ii) were added to section 2(1) of the said Act, i,e,, persons who seduce or attempt to seduce any person subject to the said Act (i,e, a member of the armed forces) from his duty or allegiance to the Government, or any person accused of an offence in relation to any defence installation, ship or aircrafts etc. Evidently such person can be said to have some connection with the armed forces. But to make the entire civil population of the country, or a province or any part thereof, subject to the Pakistan Army Act and triable by Courts Martial, may be termed as fraud upon the Statute.

' Even if this aspect of the matter is ignored we feel that it is sufficient to note, for the purpose of the question under consideration, that no nexus whatsoever has been provided by the amendment in question between the offences made exclusively triable by the Courts Martial by virtue of this amendment and the object for which the Armed Forces have been K called in the District of Lahore, i,e,, to restore or maintain security, and, law and order. The result is that the Armed Forces are now trying civilians for cases, like the murder of a nurse named Ghazala by her paramour and other similar cases with which they had no concern whatsoever. Moreover, even under Common Law of England, when the Armed Forces are called in (under the said law) to quell a disturbance, to put down an insurrection or to control violence, they are given powers to try, convict. And sentence offenders only when law and order situation has deteriorated to such an extent that the ordinary Courts are unable to function. But in the present case when the Courts were admittedly open and functioning without any hindrance from any section of the population, the Armed Forces have, as a result of this enactment (Act X of 1977) been placed in a, position where Courts Martial set up by them have superseded the ordinary criminal Courts. The mere fact that an army officer authorised in this behalf can transfer a case to the ordinary Court in his discretion, does not improve the status of the ordinary Court, but, in fact, goes to show that they have been subordinated to the discretion of such an army officer. It is thus obvious that instead of acting in aid of the civil power the armed forces are acting in supersession and displacement of the same.

19. Having found that the Armed Forces are acting in such a manner as mentioned above, we are of the view that the second jurisdictional fact mentioned by the learned Attorney-General, is not established. Consequently, we hold that clause (3) of Article 245 of the Constitution, does not have the effect of ousting the jurisdiction of this Court under Article 199 of the Constitution.

20. We may, now, consider as to whether or not the present exercise of the Armed Forces can, by any stretch of imagination be termed as `Martial Law'.

In this connection, it may be noticed that while the Press Note issued: by the Federal Government and published in the' newspapers of the 24th of April 1977, indicated in bold headlines that "Martial Law had been imposed in Lahore District", we notice that the orders and instructions etc. Issued by the Armed Forces during the first 7 or 8 days were not termed as Martial Law Orders or Martial Law Instructions. Apparently, the Army did not consider the operation being carried out by it to be a `Martial Law' but (rightly) considered it to be an action "in aid of civil power". Even the Advocate- General, Punjab, stated before us that the exercise is not Martial Law. It is only when the learned Attorney-General appeared, after a weak or so, that he took up the position that the exercise was a Martial Law. It is, however, interesting to note that in its written statement, the respondents, i,e,, the Provincial and Central Governments, have stated in this connection that the Armed Forces were merely acting in aid of civil power but the term 'Martial Law' had been used only "for the benefit of the common man". It appears that it was sometime after the commencement of the operation that it was decided, at a certain level in the Government, that the whole exercise should be called Martial Law so as to create an impact on the minds of the people, otherwise, we cannot see, how the common man could have been "benefited" by describing the exercise of the Armed Forces as Martial Law.

21. The learned counsel for the petitioners urged vehemently that after the promulgation of the Constitution of 1973, Martial Law cannot now be (constitutionally) imposed in this country because in none of the Articles of the Constitution the word "Martial Law" has been used. They also pointed out that no less a person than the Prime Minister of Pakistan (Mr. Zulfikar Ali Bhutto) himself, in a speech delivered by him on 21-4-1972 at Rawalpindi on the occasion of his oath taking ceremony, exactly five years ago, stated that:- "Pakistan today has not only a people's Constitution but has seen the beginning of an era of democracy. And as a result of the people's struggle Martial Law has been buried. Insha Allah, it shall be our endeavour never to allow in this country on anti-people era. You should bear in mind the hardships and injuries which you have undergone under the Martial Law regime, the injustices and cruelties you have suffered. If you are not vigilant and if you do not handle things carefully, if the politicians make mistakes, and if we indulge in petty matters, go along destructive channels or fight amongst ourselves, it is just possible that the bygone era might recur."

22. On the other hand, the learned Attorney-General insisted that Martial Law had, in fact, been imposed in the District of Lahore but he submitted that it was 'Constitutional Martial Law' and not the kind of Martial Law that had been imposed by Field Marshal Muhammad Ayub Khan in 1958, and by Gen. Yahya Khan in 1969. He described those Martial Laws as coup d' etat. He pointed out that in the aforementioned instances Martial Law was imposed by the Army Commanders who acted in accordance with their own will, and abrogated the Constitution and their commands became law of the land. But in the present case it is the Federal Government which has imposed Martial Law, that the command remains with the Government and that the ,power conferred on the Armed Forces including that of establishing Military Courts has been conferred on them by the Parliament through amendment in the Pakistan Army Act. He submitted that they are obeying the double command, i,e,, that of the Federal Government as well as the Parliament. He submitted that the Federal Government had imposed Martial Law in exercise of the inherent power vested in every Government and that this power is derived from (British) Common Law.

23. We have carefully considered these contentions. Martial Law has been imposed in this country even previously on three occasions, since the creation of Pakistan, i,e, in 1953, 1958 and 1969. The matter was brought to the Courts and, consequently, the nature and manner of 'Martial Law' has been considered in a number of judgments. Prominent amongst these judgments are Muhammad Umar Khan v. Crown and Asma Mani v. Government of Punjab, We need not burden this judgment by describing at length, the different forms of Martial Law or by reproducing the relevant portions of the above-noted judgments. But we may briefly .State that in one sense it means the law relating to the internal discipline of the Armed Forces of the State. In another sense the word 'Martial Law' means, the military government in an occupied territory in times of war. Thirdly, under the French Constitution there is a provision for the declaration of "State of Seige" under which the authority vested in the civil' powers for the maintenance of law and order passes entirely to the Army. Such a "State of Seige" can be declared by the French Government if there is a tumult or insurrections of considerable magnitude in any part of the country and in that event the affected areas are temporarily placed under the control of the Army. According to A. V. Dicey, `Martial Law' in this sense, namely, suspension of the ordinary law and temporary governance of the country, or a part thereof, by the military is utterly unknown to the law of England. But this does not mean that the Armed Forces cannot be employed in England for the suppression of riots, insurrections or tumults.

A. V. Dicey has himself stated at p. 288 of his book titled 'An Introduction to the Study of the Law of the Constitution' (10th Edn.), that :- "Martial Law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognised in the most ample manner by the law of England."

' He has further stated at page 290 of that book that :- "1f, then, by Martial Law be meant the power of the government or of loyal citizens to maintain public order, at whatever cost of blood or property may be necessary, Martial Law is assuredly part of the law of England."

' The learned Attorney-General has relied entirely upon this power of the government to impose Martial Law which he urged is based on the (British) Common Law. According to him, British Common Law is also applicable in Pakistan. As an example of this he mentioned that the principles of 'Natural Justice' are applied by Courts in Pakistan. This argument, however, overlooks the fact that the principles of Natural Justice cannot be said to have been descended to us from the British Common Law. We feel that they are, basically, concepts of Islamic Jurisprudence. Moreover, the learned Attorney-General has also overlooked that these principles are not applicable when any Statutory Law excludes the application of these principles expressly or by necessary implications.

He has also overlooked that in England there is no written Constitution while Pakistan in governed by a written Constitution and all powers and duties of the Government functionaries of the armed forces must flow from its provisions.4 ' For the last mentioned reason we have examined all the Articles of the present as well as the previous Constitutions of Pakistan and the Constitution of India relating to the powers of the Parliament to make laws of Indemnity. We notice that the word 'Martial Law' occurs in Article 199 o Constitution of 1956, Article 223A of the 1962 Constitution, Article 278 the Interim Constitution (1972), and Article 34 of the Indian Constitution. But it is conspicuous by its absence in the pari materia Article (i,e, Article 237) of the present Constitution.

' It is also of interest to note it is for the first time that a separate Chapter (Chapter II of Part XII consisting of three Articles i,e, Articles 243, 244 and 245) relating to Armed Forces has been introduced in the Constitution of Pakistan. Likewise, it is also for the first time that the Armed Force have been placed under the control of the "Federal Government" (which, as per definition of Federal Government given in Article 99, is nothing but the Prime Minister). In the earlier Constitution of Pakistan the command of the Armed Forces was always with the President of the country. (Refer Article 40 of 1956 Constitution ; Article 17 of the 1962 Constitution ; and Article 55 of the Interim Constitution of 1972).

' Moreover, it is for the first time that an Oath has been prescribed for the members of the Armed Forces in the Constitution of 1973. Earlier they only took an oath prescribed in the Pakistan Army Act.

B these measures, the framers of the Constitution, the most prominent amongst whom was the Prime Minister himself, brought the Armed Forces under the command of the Prime Minister and thus ensured that Martial Law cannot be imposed under the Constitution as they have been bound to uphold the Constitution. Considering these facts in the light of the speech of the Prime Minister, reproduced above it is evident that there was a conscious effort to make foolproof arrangement that the Martial Law cannot be imposed under the present Constitution of Pakistan. However, if the Constitution is abrogated, set aside or placed in State of suspended animation or hybernation, it might be possible to impose Martial Law outside the Constitution. Such an action may or may not be justified by the doctrine of necessity. The reason for such an action would depend on the circumstance prevailing at that particular time, but the justification or the existence of necessity of Such action would depend on the facts and circumstances of each case.

' Another pertinent fact which requires to be noticed is that the part materia Articles of the other Constitutions relating to indemnity (mentioned above) provided not only for passing laws indemnifying acts done by the concerned persons (including army officers) during the period of Martial Law, but also provided for making of laws validating "any sentence passed, punishment inflicted and forfeiture ordered" during that period. But Article 237 of the present Constitution does not provide for making laws validating any sentence passed, punishment inflicted and forfeiture ordered by them, i,e, by Military Courts. This glaring difference clearly indicates that not only does the present Constitution not envisage the imposition of Martial Law but it also does not envisage the exercise by the Armed Forces of any judicial functions, as is being exercised by them under the cover of the above-mentioned amendments in the Pakistan Arm Act.

24. In the light of the above discussion we feel that in spite of the fact that the learned Attorney- General insists on describing the operation being carried out by the Armed Forces in the District of Lahore as Martial Law, it is not Martial Law within any of the recognised meanings of the terms, as enumerated in the case of Muhammad Umar Khan v. The Crown, or by the Supreme Court in the case of Asma Jilani, or given by Dicey and other authorities on Constitutional Law. Nor can this exercise be termed as Martial Law under the (British) Common Law for the reason explained above.

The term 'Martial Law' has probably been used by the Federal Government for an ulterior purpose. It has been stated by the Government in its written statement as having been used "for the benefit of the common man". Evidently, the reason was that the use of the term 'Martial Law' would overawe the people by creating an impression in their minds that in the present operation the Armed Forces have arrived with the same force and fury as in the two previous Martial Laws, the memory whereof is still fresh in their minds.

' KARAM ETAHEE CHAUHAN, J.-I have gone through the proposed judgment of my learned brother the Chief Justice. While respectfully agreeing with his Lordship, I would like to add a few ideas of my own as a supplement.

2. Before proceeding further, reference may be made to Article 245 of the Constitution which reads as follows :- "Article 245. Functions of Armed Forces.-(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.

(2) The validity of any direction issued by the Federal Government under clause (I) shall not he called in question in any Court.

(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Force; of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245 : Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.

(4) Any proceeding in relation to an are, referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting."

' Clauses (2) to (4) were added into this Article by the Constitution (Seventh Amendment) Act (XXIII of 1977) retrospectively with effect from 21st April 1977. A correct analysis of this Article shows that before the jurisdiction of a High Court to issue writs, or to put it differently, to exercise powers under Article 199 is busted,

(a) there is to be specified and particularised an area ;

(b) where the Armed Forces are, for the time being, acting ;

(d) in pursuance of Article 245.

' If these conditions are satisfied then the ouster of jurisdiction of High Court will operate otherwise not.

3. Taking up the point at (a) it may be noticed that in Article 175(1) of the Constitution it is written, to quote only the portion relevant for this case, that "there shall be a Supreme Court of Pakistan, a High Court for each Province " Article 199 of the Constitution then shows that a High Court can issue orders of the type mentioned therein within its territorial jurisdiction. The point at (a) suggests that out of the total area of jurisdiction of a High Court certain area is to be specified and particularised in respect whereof jurisdiction can be ousted. A question cropped up during the arguments of the parties whether this contemplates specification only of a part of an area out of the territorial jurisdiction of a High Court or can even the whole of the area of territorial jurisdiction of a High Court also fall within the "ouster-sphere". As this is not a case of ousting jurisdiction of a High Court in relation to the whole of the Province of the Punjab, therefore, the aforesaid question need not be attended to or resolved in the present controversy which is confined only to the ouster of jurisdiction in relation to the District of Lahore.

4. As regards the points at (b) and (c), it is to be noticed that they refer to such areas where Armed Forces are, for the time being, acting and that the aforesaid 'acting suggests practical activities being undertaken by the Armed Forces and again to emphasise in aid of civil power. The emphasis is on practical activities of armed forces as distinct from a mere call placed upon them. In other words, it is only area where armed forces have been called to act in aid of civil power but the area where they are in fact acting. Sometimes despite a call the activities of the armed forces may not be in operation therein for various reasons. The area is to thus possess three characteristics, namely, (i) that it should be an area specified in the direction of the Federal Government; iii) the army should have been called by the Federal Government to act in that area and (iii) they should in fact be so acting. Now there is a well-settled distinction between the action of the military in aid of the civil power or, in other words, under the civil power on the one hand and its independent power of action under the Martial Law on the other hand. Some of the points of distinction in this respect are as follows :- "(i) When the military acts in aid of civil power, acts under the civil power and the civil guidance or the superintendence and control of the civil power, or to put it otherwise, while dealing with E a law and order situation, under the supervision of a Magistrate. E On the other hand when it acts in exercise of Martial Law, then it has independent powers both as regards the measures to be taken by it and as to courts martial. Reading the requisition of the Chief Minister of Punjab to the G.

0. C., Lahore, it appears that he had authorised the General to act in aid of civil power and exercise such powers and perform such functions as may be deemed necessary for maintaining law and order and security within the revenue limits of the Lahore district. W. F. Finlas on in the preface to his book titled "Treatise on Martial Law, as allowed by the law of England in time of Rebellion" (1866 Edition) has written at page (iv) that "as Martial Law can only be declared in a time of rebellion, which amounts to war, and need not be declared if there is a military force adequate to the occasion (as always has been the case in this country ever since the Revolution) and, therefore, the action of the military, in aid of the civil power, and under the civil power, at common law (which has often been required), has always been found sufficient; there has naturally arisen a confusion between the function or power of the military force, when thus acting in aid of civil power, and its function or power under Martial Law. And from this confusion, or from the notion that Martial Law, in its true sense, has been abolished by the Petition of Rights, has arisen all the errors upon the subject". At a later place the learned author states "when, however, the military act in support of the Executive at common law, that is, to suppress actual riot, or insurrection, they merely act in aid of civil power, and are subordinate to it; whereas, under Martial Law, the military have independent power of action; for the whole District, in fact, is placed under miliaty command and military discipline, the only authority being that of the Commanding Officer. All the mistakes that have arisen on the subject have arisen from confounding these two different, indeed utterly opposite state of things". He supplements the above in footnote (b) at page (v) when he writes that "Lord Mansfield particularly pointed out this distinction, on the occasion of the Lord George Gordon riots in 1780. Every man might if required, must, interfere to suppress riot, much more to prevent acts of treason, felony, or rebellion. This doctrine, the Lord Chief Justice stated to be the true foundation for the calling on the military to assist in quelling the late riot. The persons who so assisted were, in contemplation of law, mere private individuals; and if a military man (i,e, in such case) exceeded his powers, he must be tried and punished, not by the martial code, but by the common law.

Consequently the idea that the metropolis was under Martial Law, was idle (Adolphus Hist. Eng., Vol. III, p. 254). That is, because they had acted only in aid of the civil power. Otherwise, if it had been Martial Law, it is plainly implied, that then military would only have been liable to Martial Law, so far as regards their acts in obedience to orders under Martial Law". On page (xxvi) he writes that "the distinction between the action of the military, in aid of and under the civil power, and its independent power of action under Martial Law, was well-understood by the General in command, who, in his despatches after the proclamation of Martial Law, showed a thorough consciousness that the effect was to give the military independent powers of action to invest him with the supreme direction, whether as to measures to be taken in the field; or as to courts martial". In footnote (c) on that page the author then' writes, with reference to the famous Martial Law of Jamaica, "thus, General Nelson, in almost his first letter to the Commander after Martial Law was declared, wrote; "All operations have been satisfactory, except that the force under Capt. Field, acting under civil guidance, has not reached the point named. The detachment moved before Martial Law was proclaimed; hence Capt. Field is in no way responsible. It has disarranged my, plans, and I have sent stringent orders to Capt. Field, and hope he will receive them, and thus be relieved from supervision of a magistrate." And then the went on to mention, "the court-martial ordered for this day, has sentenced twenty-fire to death, and they have been hung". Without any , reference to the Governor, and so all through, the acts of the General proved that he considered that he possessed supreme authority in the district and independent powers of action precisely as in war, without any necessity for reference to the civil power. It was under his authority and by his warrant that a court martial assembled to try prisoners; the proceedings were submitted to him for approval; it was he who, in reference to the Commander-in-Chief determined whether or not persons were within the jurisdiction, or their offences within the cognizance of courts martial; it was he who, in the case of Gordon, considered and decided that question; it was he who decided whether the evidence was sufficient to sustain a charge against the prisoner; it was he who framed the charge; it was to him the proceedings were submitted, and it was he who approved; and it was only to the Commander-in-Chief he submitted them, and it was only done to afford the Governor an opportunity of exercising his clemency, if he saw fit, that the Commander-in-Chief sent them to the Governor (Ev. Of Eyre, Nelson, &c). It appears from the Parliamentary papers, that he distinctly refused to try prisoners, whose offences he considered not to be within the cognizance of courts- martial under Martial Law. His letter stated this, and he so stated, with perfect frankness, in his evidence". This shows that there is a material difference between the two aspects, namely, acting in aid of civil power and acting in exercise of Martial Law.

(ii) The next point of general distinction is that when the ordinary law applies, to individuals, there the emphasis is more towards the protection of an accused, but on the other hand, Martial Law has application to the whole population in the Martial Law area and has its focus more on public safety or military exigency than on individual legal criminality probably considering the whole population of the area as "suspects". This is a general basic conceptional difference on which lot can be written with reference to its detailed aspects, but I think here mention of this point simpliciter is sufficient for the purpose of the present case, though I may observe that proclamation of Martial Law is to establish in the proclaimed district such a state of affairs and species of rules which are altogether different and opposite to the civil power in respect of (a) offences; (b) penalty; (c) manner of procedure; (d) power of arrest and (e) mode of trial etc.

(iii) The third distinction is that acting in aid of civil power does not mean replacement of civil Courts or civil powers. Martial Law on the other hand means suspension of civil Courts and is actually governance of an area through military courts. In Miss Asma Mani v. Government of the Punjab and another PLD 1972 SC 139 at page 187 it was held that 'where the civil Courts are sitting and civil-authorities are functioning the establishment of Martial Law cannot be justified'."

5. As regards the point at (d), the exercise of the military should be in pursuance of Article 245 and to put it differently not under any other source, sanction or base. This needs a detailed study of the measures adopted, exercise done or the operations launched by the Federal Government to find out as to whether they fell within, or can be said to be, in pursuance of Article 245. Earned counsel for the petitioners argued that it' was quite clear from the various announcements Made, orders passed and directions and instructions issued from time to, time by all concerned, details whereof are contained in the judgment of the learned Chief Justice, that what the Federal Government, by means of the aforesaid legislative, executive and other measures, has done is that it has imposed Martial Law in certain areas of the country. These areas though given the ostensible label as areas where armed forces have been called to act in aid of the civil power, but on factual plane, are, what may be called and what otherwise have been termed and understood by all concerned as.

Martial Law areas. The officers of the armed forces deployed in that area have styled themselves as Martial Law Administrators and officers, generally zone or sector-wise, which zones and sectors have been deliminated by the said administrators/officers for the purposes of attending to the administration and holding courts martial of exclusive jurisdiction for certain offences committed in those areas even though there may be no nexus between those offences and internal disorders.

They issued orders and instructions which sometimes were termed as Martial Law orders or instructions, violation whereof, according to them, was actionable and punishable through courts martial etc. Reference was made for this purpose to a Press Note dated 23-4-1977 (copy placed on record). Even the learned Attorney-General was frank enough to concede before us that Martial Law has been imposed in certain allegedly disturbed and turbulent areas of the country which no doubt are being treated as Martial Law areas, though he took up the stand that such a Martial Law was quite within the scope of Article 245 of the Constitution and is perfectly lawful and from his point of view was a "Constitutional Martial Law". On the other hand, learned counsel for the petitioners have challenged that there is no scope for imposition of any, kind of Martial Law or declaring or treating any area as Martial Law area in Article 245 of the Constitution, or, as a matter of fact, in any other Article or any other law of this country. They took us through Muhammad Umar Khan v. The Crown and Miss Arma Jilani v. The Government of the Punjab and another for pointing out various kinds of Martial Law and argued that Martial Law, generally speaking, means temporary government through military Courts instead of civil Courts which was not warranted in our Constitution in the present state of affairs. Pointing out the classification of Martial Law, they submitted that it may be of the following types :-

(1) Martial Law which regulates the discipline and conduct of army personnel ;

(ii) Martial Law in occupied territory of enemy ;

(iii) English Martial Law ;

(iv) During actual war ;

(v) State of Beige or continental type of Martial Law ; and

(vi) Coup.

(a) As indicated above the first kind of Martial Law is that which regulates the discipline, and conduct of the army personnel. It is not applicable to civilians.

(b) The second kind of Martial Law indicates setting up of military Courts in occupied territory, i,e, enemy territory. It is regulated by public international law as part of the just Belli.

(c) The third kind of Martial Law is that where under the military embarks upon its rights and duties under common law of the country to repel force by force while assisting the civil authorities to suppress riots, insurrections or other disorders in the land. In this form it is a part of the English Constitutional law in England. It is called Martial Law in English sense. According to Dicey "it is a power which has in itself no special connection with the existence o an armed force". See Introduction to the Study of the Law of th Constitution by A. V. Dicey (Tenth) (1962 Edition) page 288.

In America Martial Law in this sense is a form of police power of the state and means law which has application when the military arm does not suspend the civil authorities but is merely called upon to aid such authorities in the exercise of its civil functions. Section 4 of Article (iv) of the American Constitution.

(d) The fourth kind of Martial Law is again another aspect of jus belli and is incidental to the state of war and appertains to the realm of the law of nations. Municipal laws have nothing to do with it and they, therefore, cannot provide for any Martial Law in this G sense. This again is not recognised in England since the time of Charles I. It is obsolete from World War II in England. In England actually there was an enactment known as Emergency Powers Act, 1940 which authorised setting up of special war zone Courts in place of ordinary Courts in the event of actual war to be followed5 6 subsequently by an Act of indemnity. In fact, on practical plane, in England it was not found necessary ever to do so. However, this shows that suspension of civil Courts can take place only in H time of actual war and that also by legislation to be followed by Acts of indemnity. It may be mentioned that the present is not a case of waging war, insurrection or rebellion, against Pakistan and, therefore, should not be mixed up with incidents of those concepts and nothing written herein should be considered to apply to such a situation when this country or any part of it is theatre or scene of war as aforesaid. The present is simply a case of examining the army acting in aid of civil power and consequent ouster of jurisdiction of this Court on that basis alone under clause (3) of Article 245 of the Constitution.

(e) The fifth kind of Martial Law is "government of a country or a district by military tribunals which more or less supersede the jurisdiction of the Courts." (Dicey page 291). It is that which is of the type of "state of seige" as contemplated in the French Constitution itself. When a state of seige is proclaimed in that country or in any part of that country, then military tribunals supersede ordinary civil courts/tribunals. It is not recognised in England. It is sometimes called as "Martial Law in the continental sense" and opposed to "Martial Law in English sense" mentioned above. It is a substitution of government by armed forces. It is actually suspension of ordinary law.

(f) There is a sixth kind of Martial Law which this country had to experience twice, once in 1958 and then in 1969 when Military Generals took over the government of the country, abrogated the Constitution by power and established themselves not through the will of the people but by dint of arms. It was (though not strictly but) in the form of a coup. (See Miss Asma Mani v. The Government of the Punjab and another PLD 1975 SC 139 overruling State v. Dosso PLD 1958 SC (Pak.) 533."

6. The analysis made by the learned counsel for the petitioners is quite instructive and was not objected to be defective in any respect. What has been written above will thus show that the essence of all types of Martial Law is that it means suspensions of ordinary Courts and temporary governance of the country or parts of it by the military tribunals in place of civil Courts and tribunals. In English sense of Martial Law the civil Courts are not replaced because temporary governance through military Courts instead of civil Courts is not envisaged in that country and the process so deployed is thus not of Martial Law and nor is it so termed.

7. The counter reply of the learned Attorney-General, as already mentioned, is that though the operations launched, no doubt, constituted imposition of Martial Law, but in reality they were nothing except promulgation of certain laws and bestowment of certain powers, judicial, executive or of other nature, on the armed forces so as to enable them to effectively perform their job of acting in aid of the civil power for which task they have been lawfully called by the Federal Government under Article 245 of the Constitution. It was conceded that these measures had, no doubt, the effect of replacing the civil Courts in Martial Law areas, namely, where the army had been requisitioned to act in aid of civil power and thus to enable governance temporarily through military Courts instead of civil Courts and 'all the laws made and the executive orders issued in this respect, it was claimed, were quite lawful and within the scope, jurisdiction and authority of the functionaries concerned, e.g., Legislature, executive and the army. He pleaded that the Martial Law imposed could not be considered and was not against Article 245. His case was that it is a Martial Law which has been imposed as a machinery for the enforcement of the internal order under Article 245 as distinct from Martial Law as a system of military rule of a conquered or invaded alien territory.

8. This brings me to study the scope and effect of Article 245 of the Constitution to find out as to whether it contemplates imposition of any Martial Law or temporary governance of the country or a district, or; as a matter of fact, of any area by Military Courts in replacement of the civil Courts or for declaring or treating any area as Martial Law area with the general incidents of that adventure as highlighted above in contradistinction to acting in aid of civil power. For this purpose, at this stage, reference may be made to constitutional history of this country so far as relevant for the precise point under study. The position under the 1956 Constitution, the 1962 Constitution, the Interim Constitution and the present 1973 Constitution is indicated below with reference to the relevant Articles :- "Article 196 (1956 Constitution): Parliament to make laws of indemnity etc.-Nothing in the Constitution shall prevent Parliament from making any law indemnifying any person in the service of the Federal or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force, or validating any sentence passed, punishment inficted, forfeiture ordered or other act done under Martial Law in such area.

'Article 223-A (1962 Constitution): Laws relating to indemnity.-Nothing in this Constitution shall prevent the Central Legislature from making any law indemnifying any person in the service of the Central or a Provincial Government, or any other person, in respect of any act done- in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area.

'Article 278 (Interim Constitution): Laws relating to indemnity.-Nothing in this Constitution shall prevent the Federal Legislature from making any law indemnifying any person in the service of the Federal or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan where Martial Law was in force, or validating any sentence passed, punishment inflicted, forfeiture ordered or other act done under Martial Law in such area."

' Article 237 (1973 Constitution): Parliament may make laws of indemnity etc.-Nothing in the Constitution shall prevent Parliament from making any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan."

' Article 245 (1973 Constitution) has already been reproduced.

' If we study the present Article 237 (reading it together with Article 245) we note that the Federal Government can direct the armed forces of Pakistan, subject to law, to act in aid of civil power when called upon to do so. This shows, firstly, that as per Article 245 the scope of calling the army confining ourself to the subject in hand, is restricted simply to act in aid of civil power and not in supersession of the civil power. When the army, therefore, is called in aid of civil power it cannot replace that power. If civil power in judicial sphere is being exercised by Ordinary civil Courts, the same cannot be suspended or replaced by Military Courts. This is one essential demarcating barrier which cannot be crossed so as to enhance the power, jurisdiction or role of armed forces in this context. Secondly, if we compare Article 237 with the previous corresponding Article 278 of the Interim Constitution, Article 223-A of 1962 Constitution and Article 196 of 1956 Constitution we note that whereas in all predecessor Articles the word "Martial Law" duly occurred, this word was significantly omitted from Article 237. This shows that if under any of the previous Articles there was a scope for imposing, what may be called, Martial Law against internal disturbances [which was the theme of the previous Articles and the present Article 237], that was done away with. After having so buried that idea, as was announced by Mr. Zulfikar Ali Bhutto himself in his speech quoted in our earlier short order, it is no longer justified to bring it back again by means of general amendments in existing laws or by promulgation of such new laws which purport to authorise governance through Military Tribunals by replacement of civil Courts in the garb of making law for acting in aid of the civil power. Thirdly, another significant factor to be taken serious note of is that whereas in the corresponding Articles power for passing of indemnity Acts extended inter alia to "sentence passed, punishment inflicted or forfeiture ordered", but these words have also been omitted from the present Article 237 which supports the view that the deletion of both, namely, of the word "Martial Law" and the other words hereinbefore quoted was with an intent to do away with imposition of Martial Law or exercise of judicial powers by army during that period and to restrict army assistance only to the extent of acting in aid of civil power and not to set up Courts Martial etc. It was suggested by the learned Attorney-General that the omission of the various words above quoted was simply for the purpose of eliminating Martial Law of the type of a successful coup which this country had to experience at the hands of two Generals, namely, Muhammad Ayub Khan in 1958 and Agha Muhammad Yahya Khan in 1969. This plea cannot be accepted, because, the type of coup suggested wherever it takes place, it takes place by dint of its own might and force and and is to be examined from a variety of principles and concepts altogether different from the subject of which we are seized at the moment. Some of the principles relevant for examination of a coup are (i) the principle of effectiveness; (ii) the principle of legitimate disobedience to authority exercised for improper purposes; (iii) the principle of necessity; (iv) the principle that violation of a right demands a remedy and that no on should profit from his own wrongful act; (v) the principle that a Court will not permit itself to be used as an instrument of injustice; (vi) the principle that it is in the public interest that those in de facto impregnable control should be accorded legal recognition; (vii) the principle, common to both public and private international law and which Grotius considered a central tenet of natural law that promises are to be kept: pacta cunt K servanda. A Government elected under a constitution expressly or impliedly K pledges with the electorate that it will hold to the Constitution. If it abrogates that Constitution, it breaks faith with the electorate and therefore contravenes this principle unless and until it submits itself once more to the same electorate to express its acceptance or rejection of the action; (viii)' the principle that government should be by the consent of the governed, whether voters or not.

There is nothing new in this principle. Authority can be found in political writings at least from the Middle Ages to the present day; (ix) other norms of international law relevant to the situation. (See "Principles of revoluntary legality" by J. M. Eekelar published in Oxford Essays in Jurisprudence Edited by A. W. B. Simpson (Second Series) by Clarendon Press Oxford 1973 at pages 22 to 43. [At this place I may add a foot-note and that is that the submission of the learned Attorney-General with regard to burial of such types of Martial Law incidentally has turned out to be very, because, when this judgment is being written, sometime earlier thereto on 4/5th of July 1977, in fact a Military coup has taken place, as a result whereof Mr. Zulfikar Ali Bhutto has been deposed from his office of Prime Minister; the National and Provincial Assemblies have been dissolved and the country is making brisk preparation for fresh general elections under the command of General Muhammad Zia-ul- Haq, who has taken over the administration of the country and and is acting as the Chief Martial Law Administrator. The Pakistan National Alliance (P. N. A) leaders have welcomed this change. Mr. Zulfikar Ali Bhutto has also shown his Party's agreement to take part in the next General Elections which have been scheduled to take place on the 18th of October 1977, Mr. Zulflkar Ali Bhutto has also made a statement that he will not challenge the constitutionality of the present military regime (before or during the elections. However, reverting and confining myself to the subject in hand the omission of the word "Martial Law" in Article 237 was intended to eliminate imposition of any type of Martial Law in case of simple internal disorder or imposition of one more type of Martial Law, which was pointed out by the learned counsel and which was, according to them, imposed on some earlier occasion in this country and was described by those who imposed it as an "Awami Martial Law". Fourthly, a perusal of Chapter 11 (Armed Forces) in Part XII of the Constitution (Articles 243 to 245 shows that the control and command of armed forces unlike the previous Constitutions, now vests in the Federal Government i,e,, the Prime Minister, who is the Chief Executive Head of that Government. Article 90(2) states that, "in the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers". This will show that the pattern of our Constitution is to vest all executive authority in the Prime Minister who is obviously a political head of a political party. His orders and directions may sometimes partake of the character of political orders and political directions, for example, for stemming up his own political party and position at all cost, even during periods when otherwise it may become very shaky for various reasons. Lest he may utilise army for his own political ends, Article 245 is a check on him when it states that armed forces can be called under his directions only to act in aid of civil power and not beyond that. This check in this way purports to save the minority from the tyranny of the majority and also save those who oppose government policies from the wrath of the group in power. It will, therefore, be in keeping with the object and spirit of this Article if it is held that it does not authorise a political government to rule through armed forces so as to clothe them with such powers and jurisdiction which purport to replace the civil power. This clearly negates the deployment of armed forces as a machinery for running the government through them or for imposing Martial Law for that purpose. Fifthly, the phrase "subject to law" in Article 245, if read in the L light of what has been written above and in the context in which it occurs, shows that in addition to the already restricted scope of the purpose for which the army is to be called, namely, in aid of civil power, its scope may further be limited or controlled by law and not that it is to be increased by any subsidiary law beyond the barriers contained in Article 245 itself. If the scope of the Article is simply to act in aid of civil power, it cannot be enlarged by ordinary laws, inasmuch as, that which is not authorised by the Constitution cannot be authorised by other laws. Sixthly, the words "subject to law" from another point of view mean that while acting in aid of civil power the armed forces are not to get an open licence to do anything they like at their sweet or arbitrary will, and shall remain subject and answerable to law if they exceeded the relevant limits. This is to keep the activities of the armed forces, when acting in aid of civil power, under control rather to allow them to go out of bounds. There is yet another aspect of the words "subject to law" which has been dealt with in a later place of this judgment in connection with the relevant context and subject mentioned therein.

[See para. 13 infra].

9. Examined in the light of the above statement of law, as laid down by and in the Constitution itself, if we attend to the Pakistan. Army (Amendment) Act X of 1977, it shows that in the areas in which the armed forces have been called in aid of the civil power certain offences and persons have been made subject to the Army Act without there being even any nexus between those offences and the internal order which meant in the words of Dicey, above quoted, "the government of the country or a district by military tribunals which more or less supersede the jurisdiction of the Courts", or, if I can so add "supersede the civil power". This measures being beyond the scope of Article 245 is ultra mires of the aforesaid provisions of the Constitution and cannot be maintained.

It was conceded by the learned Attorney-General that when armed forces were called in aid of civil power they could not be bestowed and nor would they automatically possess any legislative power so as to promulgate such directions, instructions or orders which are of a legislative character and nor could they of their own prescribe penalties for violation of their aforesaid directions, instructions or orders. He was confronted with a direction of the Martial Law authorities of Lahore wherein they had indicated that a person violating curfew could be shot at sight. The learned Attorney-General submitted that that was illegal and the Martial Law authorities of their own could not have so legislated and that when the matter came to the notice of the Government they made the position clear to the Army authorities, though later on, a retrospective amendment in the Defence of Pakistan Ordinance XXX of 1971 was made by the Defence of Pakistan (Amendment) Act XI of 1977 on the same lines as was the direction of the Martial Law authorities by inserting section 15-A in the parent Ordinance. This will show that the scope of Article 245 is not so all embracing as assumed. Another indication in this respect was that whereas the Federal Government delegated the powers vested in it under the Defence of Pakistan Rules, but they never delegated the power to make rules to the army authorities. This also shows that the scope of Article 245 did not envisage bestowment of legislative powers on the armed forces. In other words, this means that while acting in aid of civil power the armed forces cannot take over legislative power of the Parliament and Provincial Assemblies and nor, I suppose, can they take over the power of the President, the Prime Minister, the Federal Government or the Provincial Governments all of whom exercise certain civil powers. Similarly they cannot, in my opinion, replace civil Courts just as they cannot replace the functionaries and authorities hereinbefore mentioned. It will be anomalous to hold that the executive functionaries cannot be replaced but judicial civil Courts are to be replaced under Article 245. If, therefore, the purpose of Article 245 is limited in scope and dimensions hereinbefore explained, the same cannot be enlarged by Acts of Parliament which may tantamount to widen the scope of the role of the armed forces while summoned to act in aid of civil power under Article 245. To continue the subject the civil powers may embrace executive powers, diplomatic power, pardoning power, emergency power and miscellaneous powers. (The list is merely illustrative and not exhaustive). Therefore, when called in aid of civil power, could it be said that in that garb the army will replace the functionaries concerned of the aforesaid powers. If answer is in the negative, the same should be the reply to any attempt to govern the country or any part thereof by military tribunals instead of civil Courts or the civil powers. At this place I may state that 1 repeatedly asked the learned Attorney-General, the learned Advocate-General, and the learned counsel for the parties to throw light on the point as to whether a naked bestowment of all the powers of the Federal Government in the district of Lahore under the Defence of Pakistan Rules on the Chief of the Army Staff and his subordinate nominees without apparently retaining any supervisory or controlling power over their activities under the Defence of Pakistan Ordinance amounted to act in replacement of civil power or in aid of civil power of the government concerned etc.-as distinct and apart from justification of such a move under any other provision of the Constitution or any other law, when apparently it will not be an action under Article 245 ? No proper assistance was rendered to us on this aspect of the matter. However, my own view is that by making all the offences under the Defence of Pakistan Rules and and Ordinance as mainly triable by the courts-martial, army has been placed in a dominant position over the Federal Government, inasmuch as, the special tribunals/Courts established by the Federal Government under the Defence of Pakistan Ordinance will suffer a setback in the exercise of their jurisdiction and will be able to try only such cases which the army may in its pleasure assign to them. This step also amounts to replacement of another type of civil Courts, namely, special tribunals.

10. When confronted with the above situation, the learned Attorney-General argued that what Article 245 meant was that armed forces could be called in aid of civil power, but as to how they were to proceed, what precise functions they were to perform, what powers and jurisdiction they were to exercise, could well be laid down by means of a law on the subject and if the Parliament by law bestowed certain powers, executive, judicial or otherwise, on armed forces, in this respect, the same could not be taken exception to, because, while enacting the law the Parliament was supreme and a law passed by it could not be objected to if it bestowed any special powers, functions and jurisdiction on the armed forces of Pakistan. All that was required was that the actions of the armed forces should have a backing of a law, but as to what was to be the scope or limit of that law was for the Parliament to decide. The safeguard in Article 245 was only to the extent that armed forces should remain under control and not assume arbitrary powers beyond a law which at the relevant time may be existing on the subject. If any law, while they were to act in aid of civil power, vested them with any special jurisdiction, judicial or otherwsie, they could, subject to the law, exercise that jurisdiction and power. Respectfully speaking, the petition and the point is not so simple. Since it is the Constitution which by its own Article 245 has restricted the limits for, and the scope within which, the army can be called, the relevant law which is to be made with reference to this Article must also remain within the same limits and scope. If any law enlarges that scope it will conflict with Article 245. The scope of that Article can be enlarged only by a constitutional amendment and not of by ordinary law. If the scope of army intervention is desired to be expanded, this should first be provided for or enshrined in Article 245 itself. Only then could a law enlarging the powers of the armed forces to relevant extent, be made. But this could not be done so long as the basic Article remains as it is in its present form. It is where the real catch in this case exists. What the authorities seem to have done is that without enlarging the scope of Article 245, or without suitably amending it, they have promulgated laws, taken actions executive or otherwise, beyond the limits of Article 245 and now they want to adjust or place them under that Article which, as already analysed, is not wide en ough to contain them. Here it may be pointed out that in this respect even the amendment by insertion of clause (3) in Article 245 has not improved the situation, because, it ousts the jurisdiction only on fulfilment of the conditions contained therein which are the same which a Court had to examine already while scrutinising activities of the armed forces to find out as to whether they were under directions of the Federal Government and in aid of the civil power. The same scrutiny has to be done as is obvious even now with the result that the field of their exercise is still as open to examination as it was prior to this amendment, because, it is only when their activities are within the scope of clause (1) that ouster of jurisdiction is to take place. This really meant no change in the relevant text. We confronted the learned Attorney-General with this aspect of the matter and apprised him of the aforesaid deficiency in the language of the new relevant clause and its failure to stage any effective or complete ouster of jurisdiction. His reply was that he had no hand in the drafting of the newly-added clause and that if it was not so perfectly artistic that was because the amendment and drafting had to be hastily rushed through during the pendency of these cases-[though on his part he did his best to persuade us to accept ouster of jurisdiction on the text of The newly-added clause as it was-We appreciate all this, but what is obvious is that the new clause has definitely failed to achieve the object of any effective or total ouster of the jurisdiction of this Court, as analysed above in detail.

The defect, in this way, is in the drafting of the new relevant clause and nowhere else.

11. It was next contended by the learned Attorney-General that a person had no vested right of being tried -under a particular procedure or under a particular law or by a particular forum and, therefore, he cannot legitimately take any exception, for instance, in the present context to his trial by courts-martial under the Army Act instead of trial by civil Courts. Instances were not lacking where various special tribunals were constituted for different offences aid the same were held as having been lawfully constituted. In Article 175(1) it is written that there shall be a Supreme Court of Pakistan, a High Court Tor each Province and such other Courts as may be established by law. In this state of law, if the Parliament enacted the Pakistan Army (Amendment) Act X of 1977 providing for trial of offenders, committing offences cited therein, in the area whew armed forces had been called in aid of civil power, I .e. Martial Law area, by courts-martial, under the Pakistan Army Act instead of civil Courts, there was nothing unconstitutional or illegal in that Act. In my opinion, general power of the Parliament to establish special tribunals or Courts may straightaway be conceded but the point in the instant case however, is different. Here the matter is not to be approached from the point of view of any vested right of trial under any particular procedure or under any particular enactment or by any particular forum, but from the point of view of the competency of the concerned tribunal itself to try the offender. If the armed forces, when they are called in aid of civil power in any particular area, are themselves unqualified to be bestowed any judicial power, e.g. Of the kind in dispute here, under Article 245, then the defect and infirmity lies in then and at that end and place and not anywhere else. The aforesaid infirmity or lack of competency cannot be cured by invoking the concept of absence of vested right of an offender in any particular procedure. The correct approach is to see whether despite the power of Parliament to constitute special tribunals and_ Courts, can a court martial be constituted as a Court of trial for offenders for -even such ordinary civil offences which are not connected with the disturbance of the law and order situation in the area where the army was called simply in aid of civil power and not for any purpose beyond that. Since the scope and sphere of action of army in this exercise is strictly limited to aiding the civil power it is this infirmity which disqualifies it to act in supersession of the civil Courts and even an Act of Parliament will not enable them to perform such judicial functions unless scope of Article 245 is first suitably amended for this purpose.

12. At this juncture in support of validity of the Pakistan Army (Amendment) Act X of 1977, the learned Attorney-General submitted that these days there was in force Proclamation of Emergency in the country promulgated under Article 232 of the Constitution. According to that Proclamation there exists a great emergency in which the ' security of Pakistan, or any part thereof, is threatened by war, external aggression or by internal disturbance beyond the power of a Provincial Government to control. In this state of affairs, the Federal Government invoked Article 245 of the Constitution and directed the armed forces of Pakistan, , subject to law, to act in aid of civil power when called upon to do so by the Chief Minister of a Province, in such areas as may he specified by the Chief Minister. In pursuance of the aforesaid, the Chief Minister of this Province then called upon the Corps Commander, Lahore, to act in aid of civil power and exercise such powers and perform such functions as may be deemed necessary for maintaining law and order and security within the revenue limits of the Lahore district. \ It was argued that according to clause (2) of Article 232 when a Proclamation of Emergency is issued then the Parliament gets power to legislate also in concurrent and Prov incial legislative sphere'as if any matter contained there was a matter in Part I of the Federal Legislative List. According to clause (3) of Article 232, "the power of Parliament to make laws for a Province with ' respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter". It was submitted that basically the matter of calling armed forces in aid of civil power fell within List I of the Federal Legislative List with the result that with regard to that matter the Federal Legislature was quite competent to enact that persons committing offences in\ the areas where the armed forces were called in aid of civil power, should be subject to the Pakistan Army Act and could be tried by courts-martial. Alternatively it was suggested that this jurisdiction and power could be bestowed on the armed forces even if the subject-matter was considered as an item falling under residuary sphere of the legislation during emergency. I have considered this plea. When the control of armed forces under Article 243 exclusively vests in the Federation and when ,the power to direct armed forces to act in aid of civil power vests also in the Federal ,Government, then probably there is no justification to quibble, about entries in various legislative lists and to raise alternative ground on the' basis of the subject-matter being a residuary item. Be that as it may, all that Article 232(2)(a) states is that during Emergency, Federal Legislature will be competent to make laws for a Province notwithstanding the fact that the scheme of the Constitution may not have otherwise so warranted. But what will be the scope of law remains an independent question by itself. In Attorney-General of Ontario and others v. Canada Temperance Federation and others, it was laid down that "an emergency may be the occasion which calls for the legislation, but it is the nature of the legislation itself, and not the existence of emergency, that must determine whether it is valid or not". This means that even during emergency Federal Legislature will not be competent to enact a law which is beyond the limitations of that Legislature as fixed by the Constitution itself. If the Constitution has fixed the limits by laying down under Article 245 the extent to which army can be called is simply to act in aid of civil power and not to replace or supersede the civil power, then, as earlier explained, the Federal Legislature cannot do that without first suitably amending Article 245 itself. Approached from whatever point of view, there is7 no escape from the proposition that so long as the scope of Article 245 is limited it cannot be enlarged by ordinary legislation whether made in peace time or during Emergency. The learned Attorney-General then submitted, that if not under Article 245 the executive had an inherent prerogative (and as a matter of fact) every state had such a prerogative to impose martial law.

The answer is quite simple. Ours is a written Constitution in which there is no scope for claiming such a prerogative against its citizens in times of peace which may destroy rights of parties and warrant exercise of any so-called inherent powers. In Fazlul Quader Chowdhry and others v.

Muhammad Abdul Haque at p. 535 their Lordships quoted a passage from Cooley with approval and which was to the following effect :- "A Constitution," says Cooley in his Treatise on Constitutional Limitations is "the Fundamental Law of a State, containing the principles upon which the Government is founded, regulating the division of the sovereign powers, and directing to - what persons each of these powers is to be confined and the manner in which it is to be exercised. The fundamental principle underlying a written Constitution is that it not only specifies the person or authorities in whom the sovereign powers of the State are to be vested but also lays down fundamental rules for the selection or appointment of such persons or authorities and above all fixes the limits of the exercise of those powers. Thus the written Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere. No power therefore, be claimed by any functionary which is not to be found within the four corners of the Constitution nor can anyone transgress the limits therein specified."

' Similarly in Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others at page 53, it was laid down that "while it cannot be said that Article 2 makes a change in the existing law for even according to the previous decisions there could be no act of State in relation to citizens, its importance should not be underestimated. It embodies an important charter. It prevents the Government from taking any action in this 'country for which there is no legal sanction, and it at the some time debars the Legislature from creating an authority whose action are not subject to law. The Legislature cannot, in the face of Article 2 enact that whatever action a particular person may take shall be immune Crom challenge. All persons exercising authority in Pakistan must do so only in accordance with law. These conclusions have a bearing on the present case for if the Legislature cannot create an authority whOse acts cannot be challenged at all it cannot even create an authority whose acts in any particular sphere cannot be challenged.

It is not possible for the Legislature therefore to enact that the 'legality of the acts of a particular authority appointed under a statute cannot be challenged". Be that as it may, the moment the learned Attorney-General falls on any powers other than those contained in Article 245 as a justification for activities of the army in the area in question, then the case at once goes outside the jurisdiction ousting clause which lays down that jurisdiction is to be ousted in respect or such areas where armed forces are (a) acting in aid of civil power and (b) in pursuance of Article 245. In the instant case acting in exercise of Martial Law is not acting in aid of civil power and nor will it be in pursuance of Article 245.

13. Taking up another aspect of the point at (d), mentioned in para. 8, above and to excuse repetition it is to be mentioned that for ousting jurisdiction the activities of the armed forces should be in pursuance of Article 245. In order to prove this fact the learned Attorney-General submitted that it is to be seen whether there is a direction of the Federal Government calling upon the army to act in aid of civil power and whether the army was functioning in a specified area for this purpose under that direction. He submitted that the direction of the Federal Government duly existed in this case and was contained in a notification printed in the Gazette of Pakistan (Extraordinary) dated 21-4-1977, which reads as follows:-8 9 "In exercise of the powers conferred by Article 245 of the Constitution of the Islamic Republic of Pakistan the Federal Government is pleased to direct the Armed Forces of Pakistan, subject to law, to act in aid of civil power when called upon to do so by the Chief Minister of a province in such areas as may be specified by the Chief Minister."

' This direction, it was pointed out by the learned Attorney-General, according to clause (2) of Article 245, was not justiciable and clinched the matter so far as the point of ouster of jurisdiction was concerned. In my opinion, this is not a complete on comprehensive approach to the point as to whether the activities of the armed forces were in pursuance of Article 245. An important question to be tackled in this respect is that when Article 245 (1) states that "the Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so" do the words "under the directions of Federal 'Government" cover only first portion of this clause or apply to the later portion also which pertains to calling the army in aid of the civil power and if so with what result. The stand of learned Attorney-General was that the words "under the directions of Federal Government" govern both the first and the second portion of clause (1) of Article 245, with the result, as he emphasised, that without the directions of the Federal Government, armed forces cannot at all be deployed any where in aid of civil power specially when under Article 243(1) it was only 'the Federal Government which had the exclusive control and command of the armed forces and without its directions army could not move to any place. Learned counsel for the petitioners, on the other band, argued that the power of issuing directions was confined merely to defending Pakistan against external aggression or threat of war, whereas for calling the army in aid of civil power that could be done only "subject to Iaw" which means that there should be a pre-existing law authorising such a call to he made. Projecting the point it was submitted that if, according to the learned Attorney-General, armed forces could not at all be called in aid of civil power without prior directions of the Federal Government then sections 129 to 131 of the Code of Criminal Procedure which authorise a Magistrate to call army aid in the situation and cases mentioned there, will no longer be operative and that after 1973 Constitution a Magistrate would no longer be competent to exercise those powers unless he first obtained directions of the Federal Government to call the army. This obviously will show that portion" was not applicable to call the army in aid of civil power and that a call could be made to the army if 'there was a pre-existing law on the subject authorising making of such a call. It was thus argued for the petitioners that since there was no law authorising the Federal Government to make such a call that vacuum could not be filled up by resorting to power of issuing directions under earlier portion of clause (1) of Article 245 which was not applicable to such cases and situations. In my opinion and speaking with respect, the approach of the counsel for the either side is neither complete nor correct. A correct interpretation of clause (1) of Article 245 is that "the direction matter" covers both the portions of that clause in this way that aid of army can be requisitioned both under the direction of the Federal Government as well as in accordance with any law on the subject. The words "subject to law" are wide enough to cover making provisions for regulating activities of the armed forces as well as authorising placing of calls on the army. This is clear from the word "and" which exists between the words "war" and "subject" with a comma before the start of word "and" and also after that word. The word "and", therefore, means that under the directions of the Federal Government and also subject to law whenever it so authorises the armed forces shall act in aid of civil power when called upon to do so. This is the only reasonable construction, because, otherwise if the words "subject to the directions of Federal Government" are to be attached merely to defend Pakistan against external aggression and threat of war then the Federal Government will not be able to perform its duty as enjoined upon it under Article 148 (3) of the Constitution to protect any province inter alia against internal disturbances. Similarly if a situation develops which requires an immediate requisition of the army under various sections of the Code of Criminal Procedure or under any other law does it mean that a Magistrate cannot utilise army aid unless he first gets sanction and directions of the Federal Government on the subject? Obviously such a situation cannot be conceived because that may lead to the delay to be caused in the matter destroying the very object of calling the army aid.

That this is the correct construction is supported from the fact that during the very disturbances under examination in certain areas like Multan and Sialkot, etc. Army aid was called under the relevant sections of the Code of Criminal Procedure and not under Article 245. The practical working and adaptation of law in this respect thus also supports the distinctive phases and characteristics which I have pointed out regarding the subject-matter in hand. This shows that the only correct way to interpret clause (1) of Article 245 is to hold that it contemplates call to be made to army both under the directions of the Federal Government as well as under any law for the time being in force which may so authorise and which may in either case also regulate the area of this activities and actions. However, it is to be remembered that when the call is made under any other- law (other than the Constitution)-then that call is not in pursuance of Article 245 but under the aforesaid relevant law. In such a case where army assists, for example, under Code of Criminal Procedure, that is not a case of acting in pursuance of Article 245 with the result that jurisdiction ouster provision will not apply to that situation. Conversely if, however, army renders assistance under the directions of the Federal Government then in relation to that area where it is so deployed, subject to what has been written above, the jurisdiction-ouster clause will be applicable. However, in the instant case, as the Federal Government has imposed Martial Law in Lahore and as the imposition of Martial Law is not within the scope of Article 245, the armed forces are not, for the time being, acting here in aid of civil power in pursuance of the aforesaid Article, as highlighted in the earlier parts of this judgment.

14. The upshot of the above discussion is that the jurisdiction ousting conditions not having been fulfilled in these cases, this Court retains the jurisdiction to hear and dispose them of on their own merits. .

' SHAMEEM HUSSAIN KADRI, J.-On the eve of 21st April 1977 (Iqbal Day), Martial Law was imposed and curfew clamped within the Revenue District of Lahore for an indefinite period. This is claimed to be done Under certain notifications of the same day. The Proclamation of Emefgency was amended by the President vide Notification No, F. 24(4)/77-Pub. Dated 21st April 1977, and the words "and by internal disturbance beyond the power of a Provincial Government to control" were added, after the words "threatened by external aggression". By another Notification No, S. R.O. 352(1)/77 of even date the Federal Government directed the Armed Forces of Pakistan to act in aid of civil power when called upon to do so by the Chief Minister of . a Province in such areas as may be specified by him. By S. R.O. 353(1)117 dated 21st April' 1977, the Federal Government of Pakistan, exercising powers under subsection (4) of section 3 of the Defence of Pakistan Ordinance, 1971 (XXX of 1971), directed that in any area in which the Armed Forces of Pakistan are for the time being acting in aid of civil power, the powers conferred upon the Federal Government by the rules made under subsection (1) of the said section, shall be exercised by the Chief of the Army Staff and an Officer subordinate to and authorised by him' in this behalf. The President of Pakistan vide S. R.O. 354(1)/77 dated 21st April 1977, suspended the right to move any Court exercising jurisdiction in any area wherein the Armed Forces of Pakistan are, for the time being acting in aid of civil power, concluding the right to move the Supreme Court, for the ,enforcement of the Fundamental Rights, provided for in Articles 9, 10, 14(1), 15, 16, 17, 18, 19, 23, 24 and 35 of the aforesaid Constitution, and all proceedings pending in any such Court relating to the enforcement, or involving the determination of any question as to the enforcement, of any of the aforesaid Rights, for the period during which the Armed Forces of Pakistan are so acting in aid of civil power.

2. Pakistan Army (Amendment) Ordinance, 1977, was promulgated by the President of Pakistan whereby section 2 of Act XXXIX of 1952 was amended and paragraph (iii) in section 2, in subsection (1), in clause (a) Was added by virtue of which certain offences under the Pakistan Penal Code, or Pakistan Arms Ordinance, or Explosive Substances Act, 1908, -or Defence of Pakistan Ordinance, 1971 or any rule made thereunder or the High Treason (Punishment) Act, 1973 or the Prevention of Anti- National Activities Act, 1974, or an attempt or conspiracy to commit, or an abetment of, any of the said offences were included. The Pakistan Army (Amendment) Ordinance, 1977, was replaced by Pakistan Army (Amendment) Act X of 1977, with certain variations. It had to remain in force until the Armed Forces of Pakistan are acting therein aid of civil power 'in pursuance of Article 245 of the Constitution. It was extended to the whole of the country. Section 2 of Act XXXIX of 1952 was amended. The amendments made by the Ordinance were kept intact another clause (dd) was added by which persons not otherwise subject to the Act, who are accused of having done any act with intent to impair the efficiency or impede the working of, or to cause damage to, the properties mentioned in sub-clauses (1), (v), were subjected to the Act. Section 88 of the Army Act was also amended in addition to the Defence of Pakistan Ordinance, 1971 (XXX of 1971). Subsection (2) was added in section 2 of this Ordinance, namely :- "(2) For the purposes of this Ordinance, and any rules made thereunder-

(a) "Magistrate" includes an officer of the Pakistan Army not below the rank of captain; and (b)

"Police Officer" includes an officer of the Pakistan Army not below the rank of junior commissioned officer."

' This Act was published in the Gazette of Pakistan, Extraordinary, dated 30th April 1977 at pages 205 and 206. Following section 15-A was also added :- "15-A. Power to prohibit persons from moving out of doors.-(1) Any officer of the Armed Forces o1 Pakistan by whom the powers conferred upon the Federal Government by any rules made under section 3 are for the time being exercisable may, by order, direct that, subject to any exemption specified in such order, no person present within any specified area shall, between such hours as may he so specified, be out of doors except under the authority of a written permit granted by an authority or person so specified.

(2) If any person contravenes any order made under subsection (1), he shall, without prejudice to the provisions of subsection (3), be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.

(3) Any officer of the Armed Forces of Pakistan, or any officer of the Federal Security Force or any other armed forces operating under the command of an officer of the Armed Forces of Pakistan, engaged in enforcing compliance with an order made under subsection (1) may shoot at sight any person contravening the order so as to cause the death of, or other harm to such person, if in his opinion which shall be final, it is necessary to do so."

' The Pakistan Army (Amendment) Act, 1977 received the assent of the President of Pakistan on 30th April 1977.

3. The Chief Minister of Punjab on 21st April 1977, addressed the following letter to the Corps Commander, which is reproduced hereunder :- "Pursuant to the Order dated 21st April 1977, of the Federal Government, I do hereby call upon you to act in aid of civil power and exercise such powers and perform such functions as may be deemed necessary for maintaining law and order and security within the revenue limits of the Lahore District."

4. The Federal Government issued a Press Note, which was published on 23rd April 1977, in an English Daily "The Pakistan Times" the heading of which is `Martial Law in Karachi, Lahore and Hyderabad." This also mentions the imposition of curfew in Lahore and the news item was carried by APP.

' Writ Petition No, 777 of 1977 Dnrwesh M. Arbey Advocate v. Federation of Pakistan and others under Article 199 of the Constitution of the Islamic Republic of Pakistan (1973) was filed in this Court in which the background of imposition of Martial Law was given, the main grievance being the rigging of elections of the National Assembly on 7th March 1977 and the non-participation of P. N. A. In the Provincial Assemblies elections held on 10th March 1977. In para. 2 of the petition it is mentioned that on 14th March 1977, Pakistan National Alliance launched a country-wide movement for the acceptance of their demands. It was alleged that ban on public meetings and processious was imposed throughout the country and till then 500 peaceful and unarmed citizens had been killed by police, F. S. F., Rangers and Army personnel and 5000 persons have received serious injuries and 35000 persons were under detention, Martial Law was challenged on several grounds and following contentions were raised before the Full Bench by Ch. Muhammad Ismail learned counsel for the petitioner

(i) Martial Law imposed in certain areas of Pakistan is against and beyond the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 and is ultra vires.

(ii) The orders and instructions so far issued and the acts done by all the respondents are not in aid of civil power, rather civil power has been abdicated in favour of the Army, which cannot be done under the Constitution.

(iii) Pakistan Army (Amendment) Ordinance, 1977, is ultra vires of the Constitution. Hence it cannot confer any power in law on Martial Law Authorities for their acts. The respondents are guilty of high treason as envisaged by Article 6 of the Constitution.

(iv) Imposition of Martial Law by respondents 1 and 2 and issuance of different orders by respondent No, 3 is in violation of Articles 2 and 4 of the Constitution.

(v) The orders of respondent No, 3 imposing curfew during prayer time violates Article 2 `, which has neither been suspended nor could be suspended by any notification.

(vi) Body politic appoints the Chief Executive and has a right to remove him. As such the Prime Minister cannot hold office, he cannot act under Article 90 of the Constitution as the Chief Executive of the Federation. The Federal Government was, therefore, not competent to proclaim such orders.

(vii) Martial Law Authorities issued order of shoot at sight the person who violates curfew. The order is not backed by any provision of law and is `zulm'.

(viii) The acts of the respondents are not sustainable under any cannon of jurisprudence.

5. Learned counsel for the petitioner demonstrated that the performance of the Armed Forces, in Lahore is in conflict and beyond the_ scope of Article 245 of the Constitution. The imposition of Martial Law is nowhere provided in the Constitution and the Armed personnel have violated their oath by declaring themselves as Martial Law Administrators of certain Zones in Lahore. Written statement was delayed till such time until the Seventh Constitutional Amendment Act appeared in the Gazette of Pakistan dated 16th May 1977. In the written statement the first preliminary objection raised was that the hearing of this petition should remain suspended until the Armed Forces acting- in the area in aid of civil power conclude their performance. It was also mentioned that the Armed Forces were called in aid of civil power and the performance of the Armed Forces has been termed in common parlance as "Martial Law". It was further mentioned that the writ petition is barred under Article 199(3) and (5) of the Constitution. In preliminary factual paragraph it is stated that Pakistan National Alliance, their supporters and sympathisers, under a preconceived design and plan had boycotted the Elections to the Provincial Assemblies held on the 10th of March 1977, after being miserably defeated in the General Elections to the National Assembly. Innumerable allegations were levelled against them and it was controverted that their demonstrations were peaceful and several threats of grave violence for compelling the people to obey the call for strike were given. Several incidents of arson, looting, merciless beating and killing of law abiding citizens and business premises damage and destruction of public and private vehicles etc. Continued. The details of 1pss of properties are also given in respect of Lahore, Karachi and Hyderabad. Legal points were also controverted.

6. The stand of the learned Advocate-General, Punjab, before the arrival of the learned Attorney- General was that the Army was acting in civil aid. The Attorney-General, however, took up a different position and opened his address with the submission that Martial Law is very much there and it was a Constitutional Martial Law. It is necessary to reproduce here the amended Article 245 of the Constitution :

(l) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of .Civil power when called upon to do so.

(2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court.

Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.

(4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day -the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting."

' The Advocate-General, Punjab was directed to produce various orders issued by the Martial Law Authorities which he filed after great hesitation. They consist of pages 1 to 106. The parties have made their own comments showing authority and lack of authority in this behalf. Page No, 1 of the file is a letter signed by a Major for Martial Law Administrator Zone 'B' addressed to Mr. D. M. Awan, Advocate-General, 26 Aikman Road, Lahore, on the subject "Press Release". It was mentioned therein that "Press Releases from Serial No, 56 dated 2nd May 1977, to 102 dated 16th May 1977, are enclosed. Please confirm receipt." This clearly shows that Army Officers did not act in civil aid. They have styled themselves as Martial Law Administrators and have assumed the control of trichotomy of civil power in the field of legislation, executive and judicial power in the District of Lahore.

' Since there are several petitions in which different counsel have argued their cases I would like to briefly refer to the arguments raised by them. Dr. Khalid Ranjha raised the following contentions : "(1) That the Armed Forces under Article 245 of the Constitution can be called only by an authority under the law and not by the Federal Government as mentioned therein which power is only available in the event of war or aggression and threat of war.

(2) That the Act should be such that it should enshrine two principles

(i) That in what manner the Army can be called\ in aid of civil power ; and

(II) What type of civil power has to be aided." Civil power is composite of three things :

(a) Legislature;

(b) Executive, and

"(3) That law should also specify that under what circumstances the call can be Made, Whether law here could mean the civil law existing in the field."

' He submitted that under Article 245 of the Constitution the authority of the Federal Government cannot be delegated. It has to be under the directions of the Federal Government and the Chief Minister would neither be here nor there in choosing areas in his Province. He explained distinction between "delegation and direction." He tried to scan Article 245 of the constitution by dividing it into two parts. Later part of the Article, according to him, is an action of the Army in aid of civil power, subject to law.

7. Mr. Ejaz. Hussain Batalvi, learned counsel for the petitioner in Writ Petition No, 787 of 1977, raised the followings contentions :-

(i) The true extent and scope of Article 245 in the circumstances when the Armed Forces are called in to act- in aid of civil power is only to support rather than displace the civil Government and in no circumstances can they take away the judicial functioning entrusted to the Judiciary under the Constitution.

(ii) The concept of Martial Law is totally' foreign ',to our Constitution and in no circumstances can it be imposed either in the whole country or in areas arbitrarily picked and chosen by the Executive, This concept of Martial Law was finally buried in Pakistan by the present Constitution.

(iii) The amendment in section 2(1)(d) of the Pakistan Army Act is ultra vires of the Constitution. It being a sub-constitutional provision is bad in law as it contravenes the Constitution and must be struck down.

(iv) The Martial Law Authorities are every day creating new offences, penalties and punishments which are neither envisaged nor allowed by the Constitution. The question to be determined is whether the Constitution really gives this authority to them by any act' of the Lagislature."

' He also challenged the statement of learned. Attorney-General that there is a Martial Law. Learned counsel submitted that there is no provision within the framework of the Constitution to enforce Martial Law. He referred to a book "Speeches and Statements from April 1, 1972 to June 30, 1972" given by the Prime Minister' of Pakistan. Learned counsel invited specially the r attention of the Court to a speech delivered by the Prime Minister on the day when he took oath of the office as President, which was administered by the Chief Justice of Pakistan. He referred to page 50 of this book wherein it is written, as said by the Prime Minister, that "in future no such thing shall occur and the Martial Law has been buried." He referred to Muhammad Nawaz v. Crown and Muhammad, Umar Khtzn v. The Crown. He also cited page 291 of Dicey's Law on Constitution.

8. Mr. Farooq Azim Hassan, learned counsel in Writ Petition No, 792 of 1977, argued that prayer in his petition is to call upon the respondents to show under what authority of law they have acted as Martial Law Administrators. The second prayer was that the resumption of jurisdiction by the Martial Law Authorities was in lack of any legal authority and the other respondents, who had made the instruments on 21st April 1977, had gone against the Constitution in, a number of ways. In fact he submitted that writ of quo warrranto has to be issued to, the Martial Law Administrator. He raised the following points :- "(1) There is no power in the common law to impose Martial Law, since 1628, when the Bill of Rights was signed. This power cannot be exercise(1 unless it is expressly granted, and the source of the authority from which it is derived must be specified.

(2) Constitution means the law which has been made by the elected persons and as such is above the ordinary law. Where there is a Constitutional Government, Martial Law cannot be imposed.

(3) Martial Law means absence of this law Constitutional Law. All the documents issued on 21st April 1977s are ultra vires of the Constitution, namely :

(i) Pxoolamation of Emergency issued under Article 239 of the Constitution is ultra vires of the Constitution ; A Order suspending the fundamental rights is again ultra vires of the Constitution.

(iii) Powers delegated to the Martial Law Authorities under subsection (4) of section 3of the Defence of Pakistan Ordinance, are ultra vires of the Constitution ; and

(iv) Amendments purportedly made in the Army Act, 1952, are again ultra vires of the Constitution.

All the four documents separately as well as collectively are ultra vires of the Constitution and they amount to subverting the Constitution. These documents have destroyed the entire scheme of the10 11 Constitution.

(4) Two specific Articles of the Constitution i,e, Articles 90 and 129, which cannot be violated, have been violated.

(5) All the four documents were hurriedly drafted. The words internal disturbance do not figure in Article 245 of the Constitution. There are two concepts of Articles 232. One concept has been frustrated by these documents.

(6) By none of the four documents the Army has been asked to perform its duties; they have tried to do it only yesterday.

(7) Although mala fides cannot be attributed to the Legislature, it can , be attributed if there is one person.

(8) All the actions taken by the Martial Law Authorities are inconsistent with the provisions of Articles 4 and 5 of the Constitution. They are also in contravention of Article 12, since they have tried' to enhance penalties.

(9) The proclamation of Emergency is also void because it does not fulfil the requirements of Article 236, under which it has been purportedly issued. The procedural requirements of the Constitution must also be fulfilled."

' Raja Muhammad Akram contended that Martial Law can never exist where the Courts are open in the proper and uninterrupted exercise of their jurisdiction. The Military has to come on call, and that power could not be delegated to the Chiefs of Staff and it could not be further delegated. He further said that under the Constitution there is complete separation of powers. Administrative acts are done by the Executive; laws are made by the Legislature and Judicial functions are performed by the Judiciary. But all these functions have been combined in one authority. By acting in the purported exercise of power under Article 236 of the Constitution, the earlier proclamation of Emergency has been varied. This amounts to revocation of the previous Proclamation of Emergency.

' Mr. Birjees Nagi raised the following contentions :

(i) That the naked intent of the imposition of Martial Law (after assumption of power) on the pretext of a state of emergency-which is self-created for that purpose and is, therefore, make fides and the infliction of trial by court martial and the amendment of the Constitution the Army Act and other laws, therefore, has been to destroy the legal order envisaged and created by the Constitution of 1973, which was framed on the basis of a consensus achieved at the cost of having conceded to the demands of then Government (viz., the creation of an irremovable Prime Minister) which, in fact, is Government today. Thus all the legislative and executive acts actively relatable to the impairment, demolition or destruction of the legal order are unconstitutional.

(2) As the impugned legislative and executive acts, in view of the previous history of the regime in this respect have sought by systematic and persistent withdrawal of jurisdiction of the superior Courts, not only to deny them which in no wise can be given to any other agency, but to destroy judicial power itself. Furthermore, the Constitutional Courts, if amendments to Articles 199 and 245 of the Constitution and the Army Act etc. Are allowed to remain, would no more be able to discharge their functions as guardians of the Fundamental Rights of the people. This would also amount to the dismantlement of the structure of the Constitution.

(3) That a person, who is a civilian without any objective nexus, can never be tried by the courts martial, for, it is antithetical to the rule of law ensured by the Constitution such trials would create a reign of terror and raise concentration camps, which indeed have started to emerge. The power of the Government would become a fearsome engine of destruction; as today it has become.

(4) That exercise of power under Article 245 and its amendment too is without leglitmate necessity and is male fide. Exercise of power ' and the Army action are subject to judicial review in presenti and not ex post facto. If the Courts are prevented to interfere the situation may lead to what happened in East Pakistan, in which the Army was used as a hostile force with obvious dire results.

Also direction does not cover acting in aid in Article 245.

(5) That even the statements of the Prime Minister himself render the imposition of Martial Law, which has neither Constitutional nor legal basis, as mala fide and is at best the cynical and desperate action of a failing power seeking to entrench itself.

(6) The present Government has no legitimate basis for (a) by its own admission that glaring irregularities were done during election even a former Federal Law Minister assumed the role of a petty gun-tolling tough man yet another Minister was disqualified, (b) by the deductions of the Chief Election Commissioner and the Election Commission, (c) by unprecedent mass demonstrations, (d) by the recent offers that elections even to the National Assembly can be held once again, though a little later, only if the opposition compromises, (e) Provincial Assemblies were offered to be dissolved and election to be held. Hence, amendments to the Constitution and laws and the measures adopted were by incompetent bodies.

(7) That there has been an abdication of 'their functions by the National and Provincial Assemblies and by the Provincial Government under the demands of the Prime Minister. Mr. Khalil-ur-Rehman raised the following contentions

(1) There exists no nexus between the amendment in the Army Act and the scope and object of the Act. The have included another clause in the Act passed by the Legislature saying that "all the offences which have been included in clause (d). The offences will be triable exclusively by the Military Courts and that gives a further ground to show that Martial Law in the sense which was sought to be abolished (buried as Mr. Ejaz Hussain Batalvi said) has been brought to life.

(2) That the vires of the notification whereby officers subordinate to the Chief of Army Staff have been authorised by the Chief of Staff to pass orders is bad in law as a delegate cannot further delegate his power.

9. On 16th May, 1977, the Constitution (Seventh Amendment) Act, 1977, was enforced. Part XI of the Constitution deals with Amendment of Constitution. Article 238 provides the amendment of the Constitution by Act of Parliament. According to Article 239 the amending Bill has to originate in the National Assembly and when the Bill has been passed by the votes of not less than two-third of the total membership of the Assembly it has to be transmitted to the Senate. The Senate is to pass the Bill by a majority of the total membership of the Senate and it has then to be presented to the President for assent.. The Senate has to pass the Bill within ninety days from the day of its receipt failing which it shall be deemed to have been rejected. The President can keep the bill for seven days and if he fails to give his assent within that period it shall be deemed to have been assented thereto at .The expiration of that period. Sub-Article (7) places a clog on the powers of the two Houses for amendment of the Constitution by a Bill which would have the effect of altering the limits of a Province, unless it has been approved by a resolution of the Provincial Assembly of that Province, passed by the votes of not less than two-third of the total membership of that Assembly.

In Black's Law Dictionary, Third Edition word "Amend" has been defined to mean to improve, to make better by change or modification. See alter. To correct or rectify or to free from error. "Alter" means to make a change in; to modify; to vary in some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected. According to Webster's New International Dictionafy, Second Edition "alter" means "to change in one or more respects, but not entirely; to make (a thing) different without changing it into something else); to vary, to modify; sometimes, to change in any way. No power in Venice can alter a decree (Shak.). It gilds all objects, but it alters none (Pope). "Amend" has been described to reform, convert, or make better; esp. In character (a person or community); to reform (oneself). Obs. To free from faults; put right; correct; rectify. Specif., in parliamentary procedure; to alter (as a bill or resolution) formally by some addition, taking away, or modification; as, to amend an appropriation bill. The changes that may be made in amending a bill or resolution are practically limited only to those that do not bring in a subject different from the original. Mr. Ejaz Hussain Batalvi dealing with the provisions of section 4 of the Seventh Amendment Act argued that these are not within the powers conferred on the Parliament by Articles 238 and 239 \of The Constitution, for, there are certain basic features of the Constitution which cannot be amended at all because in that case the very pillars, on which the Constitution is placed, will be demolished. One of such features is the presence of judicial power ,and the rights of the citizens to be tried by the Courts established by the Constitution and the law.

10.. The Constituent Assembly of Pakistan framed this Constitution as unique in its own character which was unanimously adopted by the House. The power of Parliament to amend the Constitution certainly does not extend to alter, repeal, modify or replace the Constitution. The President was empowered to remove the difficulties by virtue of Article' 267 of the Constitution before the expiry of , three months from the commencing day or for bringing the provisions of the Constitution into effective operation, by P Order, subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient.' After the expiry of that period no changes envisaged in Article 267 could be made. By Article 72 the rules regarding the procedure with respect to joint sittings and communication between the two Houses can be added to, varied, amended or replaced at a joint sitting. It is argued that the framers of the Constitution have not lavishly used these words but have introduced them with a purpose and an objective. The Legislative spheres of the Federal and Provincial Assemblies have been mentioned in the Federal Legislative List in Article 142 of the Constitution. On a resolution by two or more Provincial Assemblies the Parliament can by law regulate any matter not enumerated in either lists in the Fourth Schedule and Parliament can pass an Act for regulating that matter in' the light of resolution. It was submitted that in the light of Articles 238 and 239 the Parliament cannot change the basic structure of the Constitution and is not sovereign in the sense of British Parliament.

Sovereignty Over the entire Universe belongs to Almighty Allah Alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust. The State of Pakistan has to exercise its powers and authority, 'through its chosen representatives by the people, following the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, basis of two nations theory and ideolgy of Pakistan, securing the independence of judiciary in this Constitution. Article 2 of the Constitution lays down that Islam shall be' the State religion of Pakistan. Article 4 deals with rights of individuals to be dealt with in accordance with law. Article 5 relates to loyalty to the State the basic duty of every citizen and obedience to the Constitution and law is the basic obligation of every citizen. Article 227 imposes fetters on the power of Legislature including the Parliament to legislate any law, which is repugnant to the injunctions of Holy Qur'an and Sunnah. It is further mentioned in Article 227 that all existing laws shall be brought in conformity with the injunctions of Islam so that the Muslims in Pakistan may adopt the Islamic way of life in this country, which was achieved after a tremendous struggle and enormous sacrifices of life and property by the Quaid-e-Azam. It is, therefore, obvious that the two Nations theory and Ideology of Pakistan cannot be undone. The State cannot be converted into secular state or a kingdom. Neither laws in conformity with Qur'an and Sunnah can be enacted nor any structural or social change can be brought about by an Q Legislation in the Constitution unless the people of Pakistan by choosin their representatives give a contrary mandate to undo the present Constitution altogether and frame a fresh Constitution. One of my learned brothers Dr. Javid lqbal, J. Asked the learned Attorney-General a question whether the Parliament by 2/3ra majority can make confederation with India? His reply was that the Parliament has the power but perhaps will not exercise it. In order to illustrate the sovereignty of the Parliament in this behalf he named countries like Iran, Turkey with which confederation can be made. This argument, therefore, reflects the intention or complexion of the members of the Parliament the action of which cart lead to a preposterous result of confederation with India and the demolition of two nations theory and ideology of Pakistan for what is there in the Constitution which can bind the future Parliament not to act in the manner in which the learned Attorney-General argued that the present Parliament would not like to act.' He, therefore, conceded 'that there should have been provision in the Constitution to prohibit such an action. In view of the objective resolution, which is enshrined in every Constitution, framed in this country one after the other, the R fetters are there on the power of Legislation by the Parliament. For the guidance of the learned Attorney-General I refer to sub- Article (.2) of Article 8 of Chapter I, Fundamental Rights of the Constitution for the type of clog which the learned Attorney-General desires to exist in the Constitution: "The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause s shall, to the extent of such contravention, be void,"

Discussing the Seventh Amendment of the Constitution Mr. Ejaz Hussain Batalvi argued that he had two submissions. If the Seventh Amendment abolishes the judicial power of the Court the amendment itself is unconstitutional this in fact has taken away the judicial power of the Court, which even the Legislature is incompetent to take away. The three organs of the State/i. e.

Legislature, Executive and Judiciary are the limbs of Civil power which have to remain within their own orbit. The scope of the Legislature to make laws is enshrined in the Constitution while the Executive derives power of administration from the laws made by the Legislature. The Judiciary has to act as an arbiter between man and man and man and the State. If the Public functionaries of the Executive perform functions of which they are not clothed with the authority by any law, such actions have to be declared without lawful authority. Similarly if the Legislature is found to have made laws which are repugnant to the Constitution or any Statute is inconsistent in its structure or suffers from any infirmity, that has to be struck down. The Constitution cannot be permitted to -be amended to impair and destroy the judicial power of the superior Courts. His view was that section 4 of the Seventh Amendment is beyond the powers -conferred on the Parliament by Articles 238 and 239 of the Constitution. There are certain features of the Constitution of Pakistan, which cannot be amended at all because in that case the very pillars on which the Constitution is placed are demolished. Citizens of Pakistan have a right to be tried by Courts established by the Constitution and the law. Article 175 provides establishment of Supreme Court, High Court in each Province and such other Courts as may be established by law. In Sub-Article (2) it is laid down that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. The distinguishing feature which is pointed out from the plain reading of Article 175 is the dstinction of the word 'Court' used with Supreme Court and High Court. The word 'Court\ here is with capital 'C' while other Courts are mentioned with small 'c'. Similarly in Sub-Article (2) the words 'No Court' have been used, again the word 'Court' is with small 'c'. The submission was that tie jurisdiction of the Supreme Court and the High Courts is Constitutionally .Provided by Articles 184, 185, 186 and 199 and it remains always intact. Territorial jurisdiction of the High Court of a Province cannot be interfered with under Article 175. No portion of the territory can be taken out of the territorial jurisdiction of the High Court and can be converted into an area like the tribal area as suggested by the 'learned Attorney-General for which period the Armed Forces are acting in aid of civil power in that territory. However, Courts other than High Court and Supreme Court can exercise only that jurisdiction which may be conferred on them by the Constitution and the law. These are obviously Courts which are subordinate to High Courts, Administrative Courts or Tribunals which can be created under Article 212 of the Constitution. Amendment _ implies such an addition or change within the lines of the original instrument as will affect an improvement or betterment for which it is framed and it cannot be so construed that Parliament can destroy the permanent character of the Constitution by dabbling with the judicial power conferred on the superior Courts in the articles mentioned above. The Constituent power of the Assembly, which framed the Constitution came to an end on 14th August, 1973, and what was left behind was only the Legislative power. The argument of the learned counsel seems to be fairly weighty. In my humble view the power of amendment of the Constitution surely rests With the Assembly, but it has to be within the concept of the Constitution of 1973, an as such the Assembly cannot change the basic structure of this Constitution. At page 39 of Butterworth's Annual Survey of Commonwealth Law, 1967, the view of the. Indian. Supreme Court about (First Amendment) Act, 1951, has been discussed in. Shankari Prasad v. Union of India. There was unanimous verdict of live Judges. The Court held that the Parliament had power to amend any provision of the Constitution including, the provision of Part III, that such power emanated from Article 368 of the Constitution of India. This view prevailed in Supreme Court of India upto 1965. However, in Sajjad Singh v. State of Rajasthan, while considering the validity of the Constitution (Seventeenth Amendment) Act, 1964, the Court thought , fit to comment on Shankari Prasad's case. The majority expressed agreement with the decision but the minority doubted its correctness. Again in 'Golak Nath v. State of Punjab, Shankari Prasad's decision was reconsidered. The Court held by a 6 to 5 majority that a constitutional amendmentis a legislative process and is law within the meaning ' of Article 13 (2), Parliament has, therefore, no power to amend the provisions of Part III of the Constitution so as to take away or abridge any of the fundamental rights contained therein. The latest judgment of the Indian Supreme Court on the subject is Kesavananda v. State of Kerala. It related to Constitution (Twenty-Ninth Amendment)

Act, 1972. It purports to bring two Kerala Land Reform Act within the special protection from judicial scrutiny which is afforded to specified land reform statutes by Article 31-B and the Ninth Schedule, which were upheld retrospectively but declared invalid prospectively (in the sense that future additions to the list of protected statutes would be invalid. View of our. Supreme Court is discussed in express terms in State v. Zia-ur-Reman, as regards the inherent limitations on each organ of trichotomy. In my view, therefore, the Parliament is not sovereign to amend the, Constitution according to its likes and dislikes much less than changing the basic structure of the Constitution.

In State v. Zia-ur-Reinan and others it was observed "A body having the power of framing a Constitution is not 'omnipotent' nor can it disregard the mandate given to it by the people for framing a Constitution or can frame a Constitution which does not fulfil the aspirations of the people or achieve their cherished objectives, political, social or economic."

' Because of the various observations made by the Supreme Court I would refrain from discussing the Constitutional theories of various authors about Grundnorm, Apexnorm, etc. However, I would like to mention here that the objective resolution passed by the Constituent Assembly in March 1949, has formed part of the Preamble of every Constitution which has been framed in this country so far. The little Parliamentary procedure that I know of is that after end of the second reading of the bill clause by clause the Speaker of the Assembly then puts to the House the question that the preamble of the bill should be part of the bill and it is voted upon like any other clause. In the Book of Making- of Pakistan by Richard Symonds, published by National Committee for Birth Centenary Celebrations of Quaide-Azam Muhammad Ali Jinnah, Ministry of Education, Government of Pakistan, Islamabad, at page "103 the resolution is mentioned. The resolution was adopted without a division after an amendment by the Congress to delete the preamble had been defeated by twenty-one votes to ten. At page 105 it is mentioned as under : "The Congress objections to the resolution were stated by Mr. B. K. Dutta 'Politics and religion belong to two different regions of the mind Politics belongs , to the domain of reason, but you Mix it with religion, you pass into the other world of faith.' He complained that 'under this clause "as enunciated by Islam" you condemn us for ever to inferior status. The Leader of the Congress, Mr. S. C. Chattopadhaya, protested even more vigorously. 'You are determined to create a Herrenvolk. . . . . This resolution in its present form epitomizes the spirit of reaction. That spirit will not remain12 13 14 15 16 17 confined to the precincts of this House. It will send its waves to the countryside as well for the minorities 'A thick curtain is drawn against all rays of hope, all prospectus of an honourable life'."

' Maulana Shabir Osmani tried to repell the apprehensions of the Congress Party. The others who took part in the debate were Zafrullah Khan, the then Foreign Minister, Sardar Abdur Rab Nishtar, Minister for Communications and the Prime Minister/ Liaquat Ali Khan. The only Muslim critic of the resolution was Mian Iftikhar-ud-Din. In my view the preamble is to be considered as part of the Constitution.

11. I will now refer to pages 2142 to 2148 of the Debates on-the Preamble of 1973 Constitution.

Despsite the speech of Mr. Abdul Hafeez Pirzada on page 2147 wherein it is mentioned "I would once again like to make it absolutely clear that the preamble would be part of the Bill outside its substantive provisions and will not control the language of the Constitution in any manner.

Therefore, in the interpretation of the Constitution that is finally passed by this august House only the Articles will have to be looked at and the preamble will not be of any assistance, neither will any person be competent to look at the preamble for the purpose of interpretation or in the event of any dispute". The National Assembly after adopting the amendment by 78 votes the speaker put the question "the preamble as amended do stand part of the Constitution Bill." The motion was adopted by 78 votes without any dissent in the following terms : "The preamble as amended stands part of the Constitution Bill."

' It is, therefore, obvious that the contention of Mr. Pirzada was rejected by the House. The observations by the Supreme Court in Zia-ur-Rehman's case PLD 1973 SC 49 about objective resolution of 1949 that it cannot control the substantive part 'of the Contitution is, therefore, obviously distinguished. "The preamble, said Pollock C, B. In Salkeld v. Johnson is undoubtedly part of the Act."

12. Fundamental rights are also guaranteed by the Constitution but during Proclamation of Emergency suspension of Articles 9 to 25 mentioned in S. R. C. 354(1)/77, dated 21st April, 1977, during the period the Armed Forces are acting in aid of civil power in a particular area cannot be enforced by moving any Court including the Supreme Court of Pakistan. Reference was made to Fundamental Right 14(1) of the Constitution; which deals with the dignity of a man and subject to the law the privacy of home has been made inviolable. It is mentioned in Verse 27, Part 18 of An-Nur (The Light) of Holy Qur'an, English Translation by/Marmaduke Pickthall, Urdu Translation b y Maulana Fateh Muhammad Jallandhri published by Taj Company Limited, Karachi, as under :- {{URDU TEXT}} O Ye who believe Enter not houses other than your own without first announcing your presence and invoking peace upon the folk thereof. That is better for you, that ye may be heedful.

' Privacy of home is, therefore, inviolable and is protected, Verses 30 and 34 from Al-Baqarah (The Cow) of Holy Book, Part I, are reproduced here which clearly mention that Man is the Viceroy of God on earth and his dignity, therefore, cannot be touched {{URDU TEXT}} ' And when the Lord said unto the angels : Lo I I am about to place a viceroy in the earth. {{URDU TEXT}} ' And when We said: unto the angels : Prostrate yourselves before Adam they fell prostrate, all save Iblis.

' Inhuman treatment and torture of any kind is, therefore, absolutely prohibited.

' In my humble view, suspension of certain fundamental rights and in particular Fundamental Right 14(1) comes in direct conflict with the Holy Qur'an. Any legislative or executive authority cannot enact a law or promulgate any Ordinance or Order in view of Article 227 of the Constitution which clearly prohibits the enactment of law which is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. I am conscious of the fact that Courts are not empowered to strike18 down such laws. But any person or Authority acting contrary to the provisions of. Article 227 is likely to run the risk of the consequences as envisaged in Article 6 of the Constitution.

13. It was argued by one of the learned counsel for the petitioners that amendment of Proclamation of Emergency by S. R.

0. 24(4)/77 dated 21st April 1977, whereby the words "end by internal disturbance beyond the power of a Provincial Government to control" have been inserted after the words "threatened by external aggression" in the Proclamation of Emergency, approved by a joint session of the National Assembly and the Senate is an Act passed by the Partiament like any other enactment within its competence. Submission was made that such a proclamation is fraudem legis and the existence of emergency of such a nature is justiciable issue. Reliance is placed on Stephen Kalong Ningkan v.

Government of Malaysia. The Judicial Committee in this case observed at page 582 : "Assuming the issue to be in law justiciable as to whether there had been a true or -sufficient emergency, the onus was on the appellant to prove the allegation that there had been no emergency within the meaning of Article 150, and he had failed to do so : it might be accepted that there was no actual or threatened outbreak of violence or breach of the peace, but the word "emergency" as used in Article 150(1) could not be confined to the unlawful use or threat of force in any Of its manifestations, and was capable of covering a very wide range of situations and occurrences. The Emergency Proclamation of September 14, 1966, was intra vires and valid.

' Dictum of Lord Dunedin in Bhagat Singh v. King-Emperor (1931) L R 58 I A 169 (P C) approved.

' That while a prcclamation of emergency was in force, subject to clause (6-A) of Article 150, power was conferred upon the Federal Parliament to make law "with respect to any matter" if it appeared to Parliament that the law was required by reason of the emergency. The terms of Article 41(1) of the\1963 Constitution of Sarawak were sufficiently explicit to make it difficult to construe the Federal Constitution as empowering the Federal Parliament to amend the Constitution of Sarawak permanently and at its pleasure, but a temporary amendment on exceptional grounds stood on a different footing. The Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, had the effect of modifying or amending the 1963 Constitution of Sarawak and' was intra vires and valid.

' Per curiam.-Whether a proclamation under statutory powers by the Supreme Head of the Federation can be challenged before the Courts on some or any grounds is a constitutional question of far reaching importance, which, on the present state of the authorities, remains unsettled and debatable."

' In my humble view on particular facts raised the Court should examine such a situation, for, the argument seems to be quite weighty in its favour. Courts of a country are the third limb of the State. It is their duty to defend and uphold the Constitution. Consequently a power has been exercised colourably or in defiance of the provisions the Constitution or without complying with the pre-requisites it shall be the duty of the Courts to scrutinise such acts done and to adjudicate upon their Constitutionality in the exercise of their power of judicial review. Emergency is dealt with in Part X of 1973 Constitution. Article 232 deals with 'proclamation of Emergency on account of war, internal disturbance, etc. While Article 234 relates to proclamation in case of failure of Constitutional machinery in a Province. Article 235 deals with proclamation in case of financial emergency. Under Article 233 the President is authorised to suspend fundamental rights during emergency period.

Scanning Article 232, sub-clause (1), Article 234 sub-clause (1) and similarly Article 235 sub-clause

(1) the words used are "if the President is satisfied" in all the three situations. Satisfaction has to be objective and there is a string of authorities in support of this proposition on the subject which I need not refer. Ultimately the proclamation made has to be approved by both the Houses of the Parliament. The proclamation thus becomes almost an Act of the Legislature and if the Courts are empowered to consider the vires of the Act in the exercise of power of judicial review hardly any distinction can be made in this situation. I am, however, bound by the dictum of the Supreme Court19 in the two authorities that the proclamation of emergency is not justiciable. Mir Abdul Baqi Baluch v. The Government of Pakistan and others and M. M. Mansur Ali v. Arodhendu Shekhar Chatterjee and others are referred.

14. By Notification No, S. R. O. 353(1)/77 dated 21st April 1977 under subsection (4) of section 3 of the Defence of Pakistan Ordinance, 1971, the power conferred on the Federal Government by the Rules made under subsection (1) of section 3 were delegated to the Chief of the Army staff and an officer subordinate to and authorised by him in this behalf. I would refrain from going into the question of sub-delegation of powers by the Army Chief of Staff` to other Officers, which have been conferred' by the Federal Government under subsection (4) of section 3 of the D. P. O. For-objective of brevity.

Perhaps one of my learned brothers may deal with this question. Suffice it to say, that after the so- called Martial Law was clamped, it was argued by Ch. Muhammad Ismail learned counsel in Writ Petition No, 777 of 1977 that there was no backing of any law for the orders issued by. Respondent No, 3 to shoot at sight any person who violates the curfew. The contention of the learned counsel is absolutely correct, for, sub-rule (2) of rule 89 provides that any person who violates or contravenes the order of curfew shall be punished for imprisonment which may extend to six months, or with fine or with both. It was argued that during the relaxation period certain persons were shot at and killed. There was no rebuttal oral or written of this allegation. Feeling the gravity of the situation and the absence of authority D. P.

0. Was amended by Act No, XI of 1977, which appeared in the Gazette of Pakistan, Extraordinary, dated 30th April, 1977. By virtue of section 3 it was enforced at once and made retroactive in operation since 21st April, 1977. Section 15-A is reproduced as under :- "15-A. Power to prohibit persons from moving out of doors.---(1) Any officer of the Armed Forces of Pakistan by whom the powers conferred upon the Federal Government by any rules made under section 3 are for the time being exerciseable may, by order, direct that subject to any exemption specified in such order, no person present within any specified area shall, between such hours as may be so specified, be out of doors except under the authority of a written permit granted by an authority or person so specified.

(2) If person contravenes any order made under subsection (1) he shall, without prejudice to the, provisions of subsection (3), be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.

(3) Any officer of the Armed Froces of Pakistan, or any officer of the Federal Security Force or any other armed forces operating under the command of an officer of the Armed Forces of Pakistan, engaged in enforcing compliance with an order made under subsection (1) may shoot at sight any person contravening the order so as to cause the death of, or other harm to; such person, if in his opinion which shall be final, it is necessary to do so."

' Subsection (2) provides the punishment for violation of curfew for a term which may extend to seven years and fine. In subsection (3) certain officers of the Armed Forces of Pakistan, Federal Security Force were given power to shoot at sight any person contravening, the order so as to cause the death of or other harm to, such person, who violates the curfew, if in' his opinion, it was necessary so to do. This subsection has given arbitrary powers to these officers as no conditions have been mentioned therein necessitating the firing. Subsection (3) in my humble view, has to be struck down on account of its vagueness and being arbitrary in character. Reliance is placed on Smith v. Goguen. A statute Massachusetts makes it an offence to publicly mutilate, trample upon, deface, or treat contemptuously the flag. A person named Valerie Goguen had been arrested for violation of the statute since he had a small cloth version of the United States flag sewn to the seat of his trousers. The Statute was held void for vagueness in that it failed to draw reasonably clear lines between the kinds of non-ceremonial treatment that are criminal and those that are not. The forbidden treatment should be defined with substantial specificity. The necessity to fire at in20 21 22 subsection (3) should have crearly been enunciated in that section so as to attract the power of shooting by the personnel mentioned therein. Even otherwise, it would be the sweet will of the personnel of these forces to either resort to subsection (21 or subsection (3) of section 15-A. All punishments presuppose a verdict of guilty. This is clearly envisaged by subsection (2) of section 15-A. The power given in subsection (3) to shoot at sight is a barbarous power unknown to the' civilised world unless it is ordained in subsection (3) \ that such power to shoot at sight could be exercised by the officers in certain conditions for example if a person is setting on fire, private or public property or is found assaulting an unarmed person with deadly weapons etc. Etc. The shooting by any of the personnel in the absence of such pre-conditions falls within the purview of the offence of murder. Obviously there would be a plausible explanation available to curfew breakers, if a trial is initiated against them.

14. Learned Attorney-General, the Advocate-General, Sind and counsel for the Federal Government while arguing on the Seventh Amendment submitted that Court may take ex post facto action against such personnel who have made excesses during such exercise. There being no provision for imposition of Martial Law in the Constitution, Article 237 of the Constitution, which deals with conferment of powers on the Parliament for making laws of indemnity perhaps would not be available to provide cover for the acts done by the Security Forces under the Martial Law. It was argued that they are perhaps intentionally put in a perilous position by a Government of political party in power in order to perpetuate its authority against the wishes of the people. The allegation of rigging the elections, according to learned counsel for the petitioner is well substantiated by the clear findings of the Election Commission in setting aside elections of all the constituencies which were scrutinized under the Ordinance promulgated for that purpose. There is sufficient force in the submission made, but it is for the Commission or the Tribunal to give a final verdict about the legality or illegality of the elections held in March, 1977. The Armed Forces which owe, allegiance to Pakistan cannot be used for political motive of the party in power. It not only is violative of the oath prescribed under Article 244 of the Constitution, for, it prohibits the engagement of the X Army in political activities am, is further likely to tarnish the image of the Army which it regained after great toil and perseverance after the fall of Dacca in this long period of six years.

Similarly I would not make any further comments about the amendment of Army Act about which we have already made the observations of the absence of nexus of the offences mentioned in the.

Amended Act in our earlier order.

16. I would now deal with . The argument of Dr. Farooq Azim Hassan regarding Chapter II, Part X11 of the Constitution dealing with the Armed Forces. Article 243 lays down that command of the Armed Forces vests in the Federal Government. The power to raise and maintain the Military, Naval and Air Forces of Pakistan and the Reserves of such Forces, to grant Commission in such Forces and to appoint the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff and determine their salaries and allowances vests in the President, subject to the law.

' The framers of the Constitution were conscious enough to create checks and balances in the exercise of powers and performance of functions as defined in Article 248 of the Constitution. The control and command of the Armed Forces by virtue of Article 243(1) vests in the Federal Government which under Article 90 has to be exercised by the Prime Minister while the power of raising and maintaining Military, Naval and Air Forces of Pakistan and Reserve Forces, the grant of commission in such forces and the appointment of the Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff and determination of .Their salaries and allowances vests in the President. Further the exercise of power as mentioned in Article 45, namely, grant of pardon, reprieve and remission of sentences and commutation of sentences and Article 243(2) is mot subject to binding advice of the Prime Minister as given in Article 48 which concerns only performance of functions and not exercise of power. The distribution of checks and balances seems to have been borrowed from section .9 of the Government of India Act, 1935, where the power of Governor-General has been split up into three categories, namely, (a) to act on the advice of the Council of Ministers (b) to act in his discretion and (c) to act in' his individual judgment. Section 9 of the Government of India Act, 1935, as adopted at the time of creation of Pakistan, reads as under :--, "There 'shall be a Council of Ministers to aid and advise the Governor-General in the exercise of his functions."

' This eliminated the exercise of powers of the Governor-General in the field of his individual judgment and discretion. If the' intention had been to vest the Federal Government with all the powers and performance of functions, the Constitution makers would have used only the word 'Federal Government' as defined in Article 90 so as to obviate any doubt or ,ambiguity. However, the use of words 'Federal Government' in Article 243(1) and 'President-in Article 243(2) makes it distinctively clear that the power to raise Armed Forces etc. Could not be exercised by the Federal Government or the Prim Minister. This is further supported by the fact that the sphere of the authority of the President under this Constitution extends to three specific fields, namely, (a) exercise of power (b) performance of functions and (c) to act on his satisfaction. Reference in this connection may be made to Articles 248, 48, 45, 243(2), 232, 234 and 235 among others. The advice under Article 48 is, therefore, binding in regard to only one sphere i. e. Performance o Y functions and not in the two other powers. The necessity of counter signatures of the Prime Minister under Article 48, therefore, arises only in this sphere and not in the other two. The words "the orders of the President" mentioned in sub-Article (3) of Article 48 clearly relate to the performance of functions by the President as is obvious from sub-Article (1) of Article 48. Had the framers of the Constitution the intention that all orders of the President should be countersigned by the Prime Minister for their validity in such circumstances the word 'the' should have been replaced by the word 'all' occurring in-between the words "Article 99" and the words "orders of the President" in sub-Article (3) of Article 48 of the Constitution. Thus the advice of the Prime Minister is not binding in regard to Articles 89, 232, 234 and 235. Otherwise, the word President is 'satisfied" should become absolutely redundant.

The power of imposition of emergency within the satisfaction of President extends to a certain period only and thereafter there is another check of scrutiny by the two Houses of the Parliament.

Sub-Article (7) of Article 232 provides that such a proclamation of emergency has to expire after two months unless it is approved by a resolution of the joint sitting of the two Houses of the Parliament. Similarly proclamation of failure of Constitutional machinery in a Province issued on the satisfaction of the President has to expire after two ,months unless it is approved by a resolution of the joint sitting of the two Houses as provided in sub-Article (3) of Article, 234. Again the power to promulgate Ordinances under Article 89 is based on the satisfaction of the President when the Assembly is not in session. The life of such an Ordinance extends to four months unless a resolution disapproving the same is passed by the Assembly or is withdrawn by the President at any time.

17. It is, therefore, manifestly clear that the President has the power uninfluenced by the Federal Government to raise and maintain Armed Forces, grant remission and appoint the three Chiefs of Staff. The command and control, however, vests with the Federal Government which is to be exercised in the name of the President by the Prime Minister. Despite the fact that the command of the Armed Forces vests in the Federal Government under sub-Article (1) of Article 243 of the Constitution, a situation can arise for which answer in the Constitution is not provided, for example, the Prime Minister after dissolution of the Parliament refuses to go to polls for an indefinite period or gets himself declared elected fraudulently or unconstitutionally in order to perpetuate himself and his political party against the wishes of the electorate, or another situation arises, namely, he undertakes an air journey along with his Ministers and the plane carrying them crashes or is hijacked by an enemy agent and the country is invaded, will the President or his three Chiefs of Staff sit as silent spectators in order to await the command of the Federal Government, which is not there ? In my humble view alt the powers of the Federal Government shall vest in the President in such a situation under the Constitution and he shall be obliged to act according to the Constitution to call upon the three Service Chiefs to defend the territorial and ideological boundaries of Pakistan, as he is the head of the State and represents unity of the Republic under Article 41 of the Constitution.

' Article 245 of the Constitution confers two duties on the Armed Forces of Pakistan, namely, to defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power, when called upon to do so. While acting in defence of the country on the direction of the Central Government the will of the Commander will prevail in the occupied territories, once such direction is issued. But when they are called upon to act in aid of civil power, they have to act subject to law and not according to the will of the Commander. Islamic history will show that when Commanders were deputed for `Ghazyaf by' the Holy Prophet, the Great General, they were directed 'do not destroy crops and gardens, do not kill old men, women and children, do not destroy the places of worship of non-Muslims. Our Army has to look to the conduct and performance of the renouned Muslim Generals instead of looking towards Field Martial Montgomery, Romel, Churchill and others. The other function of the Army is to respond to the call when made to come in aid of civil power for any necessity of restoration of civil order and to meet the calamity, flood, earthquake or national disaster of any kind.

' It was argued by Dr. Khalid Ranjha learned counsel for the petitioners that the Chief Minister had no such authority under Article 245, purported to have been delegated in the Notification by the Federal Government (i. e. S. R.0. 352(1)/77) to call upon the Armed Forces in an area specified by him. The letter addressed by the Chief Minister of Punjab on 21st April 1927, to the Corps Commander makes a mention of the order of the Federal Government dated 21st April, 1977, and in pursuance thereof he called upon the Commander to act in aid of civil power within the revenue limits of Lahore District. He also authorised the Commander to exercise such powers within the revenue limits of Lahore District. He also authorised the Commander to exercise such powers and perform such functions as may be deemed necessary for maintaining law and order and security.

It was further argued that to act in aid enshrines two principles, namely, (i) in what manner the Army can be called in aid of civil power and what type of civil power has to be aided. Civil power is composed of three things Legislature, Executive and Judiciary. He also submitted that subject to law here would mean the civil law existing in the field. He referred to Chapter IX of the Cr. P. C.

Sections 129, 130 and 131 which relate to the use of military force. Duty of our Officer Commanding troops required by the Magistrate to disperse assembly and the power of Commissioned Military Officers to disperse assembly. A Magistrate can require any Commissioned Army Officer to disperse such assembly by Military Force and to arrest and confine such persons forming part of that unlawful assembly, as the Magistrate may direct, or if necessary, to arrest and confine such persons in order to disperse the assembly or to have them punished according to law. The Officer shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons. Somewhat similar powers can. Be exercised by a Commissioned Officer of the Pakistan Army when he finds that public security is manifestly endangered by such assembly and immediate action is called for when no Magistrate can be communicated with. The Commissioned Officer of the Pakistan Army may disperse such assembly by Military force, and may arrest and confine any person forming part of it, in order to disperse such assembly or that they may be punished according to law ; but if, while so acting, it becomes practicable for him to communicate with a Magistrate, he shall do so and shall thenceforward obey and follow the instructions of the Magistrate as to whether he shall or shall not continue to take such action. Section 132 gives protection against prosecution for acts done under this Chapter.

' Mr. Yahya Bukhtiar, learned Attorney-General supporting the validity of the Constitution (Seventh Amendment) Act, 1977, submitted that the jurisdiction of Court is ousted. However, it depends upon three ingredients which have to be seen whether there is a direction, when the area is specified and whether the Army is acting or has acted in that area in aid of civil power. Learned Attorney General frankly conceded that the power of judicial review is always with the Courts and it is for the Courts to interpret the Constitution. He, however, supported the validity of the Seventh Constitutional Amendment Act of 1977 and submitted that there is complete ouster of jurisdiction of the Court by this Amendment. He submitted if the action had been without jurisdiction or mala fide or coram non judice then the Court could interfere. Reliance was placed on State v. Zia-ur- Rehman and Government of N.-W. F. P. v. Muhammad Said Khan and another. The learned Attorney-General read extensively from Zia-ur-Rehman's case. In his view since these three conditions exist the District of Lahore is now a foreign territory for this Court and he compared it with a tribal area. He relied on Piao Gul v. The State, Jamil Ahmad and another v. The State and 5 others and Abdul Rahim and others v. Home Secretary, Govt. Of West Pakistan and another. The learned Attorney General referred to F. B. Ali and another v. The State and read several portions of this judgment in support of his claim of ouster of jurisdiction, but in my humble view these cases do not support him at all. F. B. Ali was a retired Brigadier and thus subject to Army Act and there was also nexus with the offence of seduction of which he was accused of. It was observed at page 539 in the second paragraph : "In my view, only the conviction in respect of the offence under section 121-A, P. P. C. Is vitiated on the ground of want of jurisdiction." Learned Attorney-General also referred to Halsbuary's Laws of England, Vol. VIII, Third Edition, paragraph 538 at p.

260. He laid great stress on Muhammad Umar Khan v. The Crown. The imposition, of Martial Law in this case was based on the British Common Law which is no more available in this country, which has a written constitution, to be adhered to in letter and spirit. The learned Attorney.General can only succeed if from Article 245 of the Constitution he can spell out the provisions of Martial Law. What to say of Article 245 of the Constitution he was called upon to show any provision in the Constitution in support of the imposition of Martial Law but he was unable to do so.

' At page 133 of the Administrative Law by J. F. Garner, Fourth Edition, the Author, while discussing the scope of judicial review, dealt with substantive ultra vires in terms of 'jurisdictional facts.' If a Statute confers jurisdiction on an administrative body in certain defined factual situations, and if one of the essential elements of those factual situations is absent in the particular case, the body will be without jurisdiction and any decision taken in purported exercise thereof will be ultra vires. In my humble view the real test is as to whether factually the Armed Forces of Pakistan have acted in aid of civil power in pursuance of Article 245. In fact there are two phrases, which are necessary for consideration in Article 245 i. e. (i) Armed Forces are acting in aid of civil power and (ii) subject to law. Words 'in aid' have been used in Article 190 of the Constitution which is reproduced as under :- "All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."

' Can it be said that the executive and judicial authorities while acting in aid of Supreme Court supersede or divest the Supreme Court of all the judicial powers or replace it by their own authority.

The plain answer is "No". The other phrase 'subject to law' clearly indicates that the, Armed Forces have to function subject to law and that is obviously in aid of civil power. Civil power is in contradistinction to Military power or Army power, Civil power, I have already discussed has three limbs, namely, executive power, legislative power and judicial power. Can the Armed Forces acting in civil aid take upon themselves all these three functions and can they style themselves as Martial Law Administrators. The answer is obviously in the 'Negative'. The instructions and orders issued by23 24 25 26 27 28 the Martial Law Administrators of different zones and the press releases have been placed on the record. Some of them reflect that the Army is alleged to have over-stepped in all the three, fields.

' The learned Attorney-General, day in and day out, referred to the N. A. Ps. Cose and read substantially from his own arguments and judgment of the Supreme Court in order to narrate the background of Article 245 of the Constitution in respect of the happenings in Baluchistan. His attention was invited several times as to the relevancy of N. A. P's. Case and situation of Baluchistan to the present case. The learned Attorney-General instead of replying to the question was sometimes furious and adopted overawing attitude towards the Court. He stressed that the present Martial Law was different from that of Field Martial Muhammad Ayub Khan and General Yahya Khan, as it was a coup d'etat and not Martial Law, since the Constitution in both the cases was abrogated. He read several passages from Miss Asoma Jilani v. The Government of the Punjab and another, in support of his view. He was asked to show any provision in any of the articles of the Constitution relating to the power of imposition of Martial Law, what to speak of the word Martial Law. He could not even point out any provision in the Constitution which conferred authority on the Parliament to pass an Act of Indemnity in cases of excesses made by the Serving Personnel while so acting which according to the learned Attorney-General was a Constiutional Martial Law.

He contended that the jurisdiction of this Court was temporarily suspended and it was for this Court to punish anyone of the personnel in the Armed Forces if he had over-stepped his authority as soon as the operation of the Armed Forces in the District of Lahore comes to an end. If this argument is accepted then the Armed Forces are placed in a most unfortunate position by the Government of a political party in power, the validity of which has also been questioned when they are called upon to come in aid of civil power under Article 245 and are forced to style themselves as Martial Law Administrators and to perform certain functions for which they are not clothed with any authority. In such circumstances our valiant soldiers, who are under an oath of allegiance to the Constitution of Pakistan, are placed in a perilous situation. On the one hand they are made to carry out the orders issued by the Federal Government while on the other, they are not provided any protection for any act or omission which they have advertently or inadvertently done. Learned Attorney-General should at least know that Constitutional Martial Law is a contradiction in terms.

Martial Law means no law and presently I will be referring to several books of Jurisprudence on the subject. Muhammad Munir, C. J. In Muhammad Umar Khan v. The Crown described three types of Martial Law (i) when it is used with reference to law relating to discipline in the armed forces of the State which is administered by tribunals, called courts martial (ii) in the second sense, the word "Martial Law" means "Military Government in occupied territory" and is used to describe the powers of a military commander in times of war in enemy territory. In this sense, Martial Law is recognised by Public International Law as a part of English Constitutional Law, martial law means the rights and obljgations of the military under the common and statute law of the country to repel force by force while assisting the civil authorities to suppress riots, insurrections or other disorders in the land. In American Constitutional Law, Martial Law in this sense is a form of the police power of the State and means law which has application when the army does not supersede civil authority but is merely called upon to aid such authority in the execution of its civil functions. These three types of Martial Law are also mentioned in Salmond's Jurisprudence, 1957 Edition, at pages 91 and 92. It will be noticed that the justification of this from of Martial Law, if it can at all be so-called, is the common law of England and several statutes which create rights in and impose obligations on citizens and servants of the Crown in the matter of suppression of riots. On page 529, in the second paragraph it was observed : "therefore, Martial Law is not law at all but the will of the officer commanding the army. Constitution on the other hand means a "magna carta" or a guarantee given to the people in writing about powers of various public functionaries including the civil power and the military power. This is enshrined in our Constitution of 1973. Therefore, under the garb of29 30 Article 245 Martial Law cannot be imposed. In Article 34 of the Indian Constitution, however, the word 'martial law' is mentioned. This article speaks that the Parliament, may by law indemnity any person in the service of the. Union or of a State or any other person in respect of any act done, or purported to have been done, by him in relation to the maintenance or restoration of law and order in any area within the territory of India where martial law was in force and to validate any sentence, conviction etc. Etc. Similar provisions, however, do not exist in our Constitution of 1973, nor was the learned Attorney-General able to point out any. When confronted with this situation he again placed reliance on Muhammad Umar Khan's case and submitted that it was the common law on the basis of which the martial law has been imposed in various places of this country including Lahore. Learned Attorney-General was called upon to show any of the provisions of the Constitution under which the common law of England could be enforced in this country. He was unable to do so, and submitted that when the Courts apply the principle of natural justice they rely on common law of England. He perhaps does not know that principles of natural justice are not based on the English Common Law but are enshrined in the Holy Book. Verses 18, 19 and 20 from pages 851 and 852, Part 29 of Surah Alhaqqah, verses 13 and 14 from Bani Israil, Part 15, page 423 and verses 20 and 21 of Surah An-Naml, Part 19 where Solomon enquired about the absence of the hoopoe from amongst the birds and observed that he will punish him or kill him or he shall have to explain his absence are reproduced :- {{URDU TEXT}}

(18) On that day ye will be exposed ; not a secret of you will be hidden. {{URDU TEXT}} ' Then, as for him who is given his record, in his right hand, he will say : Take, read my book ! {{URDU TEXT}} Surely I knew that I should have to meet my recknoning. {{URDU TEXT}} ' Any every man's augury have We fastened to his own neck, and We shall bring forth for him on the Day of Resurrection a book which he will find wide open. {{URDU TEXT}} ' And it will be said unto him): Read the book. Thy soul sufficeth as reckoner against thee this day. {{URDU TEXT}} ' And he sought among the birds and said: How is it that I see not the hoopoe, or is he among the absent ? {{URDU TEXT}}

(21) I verily will punish with hard punishment of I verily will slay him or he verily shall bring me a plain excuse.

' The last two Surahs in suppoft of the principle of audi alteram partem have been relied upon by a Division Bench of this Court in Shahid Afzal v. Government of Pakistan.

' Mr. Zulfikar Ali Bhutto on several occasions, including the Third Jurists Conference, held at Karachi, laid great stress that our Courts should not follow and depend on Anglo-Saxon law but should search from our own treasures, Islamic Fiqa and from laws of other countries having social order. It is strange that the learned Attorney-General tried to persuade as to follow the English Common Law in the imposition of Martial Law. He further made an observation that in fact Martial Law is attributed to Article 245 in Common Law parlance to make the common man in the street understand the implications of Article 245. Even then I feel that the framers of the Constitution had no such intention whatsoever to scare the people of this country. Theobject of the framers was to give to the people good government providing Islamic way of life in accordance with the injunctions of Qur'an and the Sunnah. The recent leanings of the Government towards the early implementation of Sharia in this country are depicted from the Act of Prohibition passed by the31 Parliament, declaration of Friday as a public holiday instead of Sunday and the formation of the new Islamic Advisory Council, which is ordained to make its recommendations to Islamic the laws within a period of six months.

' On page 11 of the Current Legal Problems 1956, Vol. 9, edited by George W. Keeton, it is laid down :- "Where have I got to now? To establishing I think, the proposition that the influence of the common law has been receding and not expanding and that this is not due to any timidity in the face of advances by the executive but rather to voluntary withdrawal in the field of public policy as a whole. There are two reasons for this recession. The first is that in it the common law is obeying the law of its own nature and the second is the increase of parliamentary activity."

' In Great Britain there is, no written constitution as all of us know. Ours is a written Constitution and unique in character. Nothing can be brought into the Constitution which does not exist therein and can anything be taken out which tends to transgress the different fields of trichotomy of civil power.

18. I would now like to reproduce some passages from Constitutional and Administrative Law, Fourth Edition by 0. Hood Phillips.

"Martial Law in the strict sense means the suspension of the ordinary law, and the substitution therefore of discretionary government by the Executive exercised through the military. In France a state of seige (etat de siege) may be decreed in the Council of Ministers, but only Parliament may authorise its extension beyond twelve days." It involves the temporary and partial transfer of powers from the civil to the military authorities. The purpose of a state of Seige in France is merely to maintain public order : for the conduct of a war it is necessary, as in England, for emergency powers to be conferred on the Executive by legislation.

' Is Martial Law known to English Law? Dicey asserts that Martial Law in this sense is unknown to our Constitution. Other writers have drawn a distinction between Martial Law in time of peace and in time of war, and contend that while the Petition of Rights (1628) declares it illegal in the former case, it may still validly be proclaimed in the latter. The Petition of Rights complains that commissions had been issued to certain persons giving them power to proceed "within the land" against such soldiers or mariners or other dissolute -persons joining with them as should commit crimes, and to try them by such summary course "as is agreeable to martial law and as is used in armies in time of war"; and it prays that no such commissions shall thereafter issue. Cockburn, C. J.

In his charge to the grand jury in R. v. Nelson & Brand (1867) S -R 99-100 pointed out that no distinction was made until after the time of Blackstone between "martial law" in the modern sense and what is now called "military law".

' In Great Britain, at any rate, the Crown cannot proclaim Martial Law by prerogative in time of peace. Nor has the Crown purported to proclaim it in time of war since the reign of Charles, J. And it makes no difference whether or not a state of war has been proclaimed.

' What on rare occasion s has been called "Martial Law" since 1628 by British constitutional writers has been a state of affairs, outside Great Britain, in which, owing to civil commotion, the ordinary Courts were unable to function, and it was therefore necessary to establish military tribunals (pages 511 and 5121.

' A C 109 however, shows that this test is not conclusive, and that the existence of a state of war in a given district is compatible with the continued functioning for some purposes of the civil Courts within that District. To exclude the legality of Martial Law, says Holdsworth History of English Law, Vol. I, page 576) "the Courts must be sitting in their own right and not merely as licensees of the Military Authorities."

' The House of Lords held that if in fact a state of war exists or existed at the time in question, a military tribunal is not a Court in the ordinary sense, but merely a body of Military Officers advising their commander. (page 513)."

' A famous Wolfe Tone's case is an example of the use of writ of habeas corpus to seek freedom for an Irish rebel. The Court granted writ of habeas corpus and freed him. On page 514 the author deals with Statutory powers to deal with an emergency in time of peace under the Emergency Powers Act,- 1920 which authorises Her Majesty in Council to make regulations for securing the essentials of life to the community ; and those regulations may confer on a Secretary of State or other Government Department, or any other persons in Her Majesty's service or acting on Her Majesty's behalf, such powers and duties as Her Majesty may deem necessary for preserving the peace, securing to the public the necessaries of life, the means of locomotion, and the general safety. Nothing in this Act is to authorise the making of regulations imposing military or industrial conscription, the alteration of the rules of criminal procedure, or making it an offence to take part in a strike or peacefully to persuade other persons to take part in a strike.

' The regulations may provide for the trial by Courts of Summary jurisdiction of persons offending against the regulations. The Maximum penalty for breach of the regulations is imprisonment for three months or a fine of 100 or both, together with the forfeiture of any goods or money in respect of which the offence has .Been committed. Regulations may not alter criminal procedure or confer any right to punish without trial. The Act was fully invoked during the General Strike of 1926-1949 (dock strike) 'and 1955 (Railway strike) and Seamen's strike in 1966.

' In time of War under the Defence of Realm Acts, 1914-15 at page 516 it is laid down :- "Shortly after the outbreak of war in 1914, the United Kingdom was in effect placed under military law by the Defence of the Realm Act, 1914, and British subjects and aliens were triable by courts martial in connection with certain offences for some months. Subsequent Defence of the Realm Acts allowed British subjects to claim a civil trial on taking the prescribed steps, and gave to the King in Council such powers as were necessary for the efficient prosecution of the war. The doctrine of ultra vires, of course, still applied Chester v. Bateson 0920) 1 K. B. 829; Attorney General v. Wilts United Dairies (1922) 92 L J K B 897, hut, as a learned Judge has said, a modern war can no more be conducted in accordance with the provisions of Magna Carta than on the principles of the Sermon on the Mount."

' This clearly creates distinction that at home eversince 1915 no British subject has been tried even during the war by a Military Court. At page 517 under the heading. "The Emergency Powers (Defence) Acts 1939 and 1940 it is laid down "for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community section 1 gave a general power to His Majesty by Order in Council to make such Regulations as appear to him to be necessary or expedient. The Emergency Powers .(Defence) (NO. 2) Act 1940, which was passed a few months later in order to remove doubts, declared that provision might be made by Defence Regulations "for securing that, where by reason of recent or immediately apprehended enemy action the militaty situation is such as to require that criminal justice should be administered more speedily than would be practicable by the ordinary Courts, persons, whether or not subject to the Naval Discipline- Act, to military law, or to the Air Force Act, may . . . Be tried by such Special Courts, not being courts martial, as may be so provided."

' The following passages from pages 514 and 515, Chapter 23 National Emergencies are reproduced from the book Foundations of Law constitutional and Administrative Law, S. A. De Smith, Second Edition are reproduced:- "It is possible to analyse the duties of soldiers to quell local riots as being the duties of the ordinary citizen writ large. But when riot passes into rebellion or guerrilla warfare, emphases shift and other principles intrude. Levying 'war' against the Queen in her realm is both treason and treason felony.

The civil power primarily responsible for containing and suppressing an uprising must be the Government in office. The Military Authorities will be obliged to act in its support. The Crown, acting32 through its advisers, has, moreover, a prerogative power to direct the disposition and use of the armed forces. .......................................................................................................

' Martial Law has been aptly described as a peculiar system of legal relations, which arises in time of civil war or insurrection, or, it may be added, invasion. It is a state of affairs, not a settled body of rules, though rules and orders will be promulgated and enforced by the military authorities as they see fit. It must be sharply distinguished from military law, a settled body of rules applied in accordance with prescribed procedures to members of the armed forces and ancillary personnel.

Military law is simply a specialized branch of United Kingdom law administered by Military Officers acting summarily or sitting in courts martial, subject to the supervisory and appellate jurisdiction of the ordinary courts. Courts martial applying Military Law are regular Courts. Courts martial applying Martial Law are not; they are informal tribunals or committees of Officers, and appear to be no more subject to the supervisory jurisdiction of the superior Courts than are `drumhead Courts' or soldiers meting out summary punishment to armed rebels, curfew-breakers or other supposed malefactors among the civil population.

' Confusion of martial law with military law was far more common before a regular corpus of military law was introduced in the eighteenth century. In the Middle Ages the prerogative Court of the Constable and Marshal dispensed the 'law martial' against rebellious civilians as well as undisciplined soldiers; it lost most of its jurisdiction in 1640. Under the Tudors and early Stuarts Special Commissions were issued from time to time under the prerogative for the trial by Martial Law of serious offenders against public order. The issue of such commissions was forbidden by the petition of Right 1628. But the terminological confusion lingered on.

' The term 'martial law' is also sometimes used to denote military rule over enemy territory occupied by British forces. Such a situation is regulated rather by the international law of war than by British municipal law.

' Finally, 'martial law' can be used to describe an entirely different kind of situation-one where militay officers overthrow the legitimate government, establish a new regime and proclaim a state of martial law. The phenomenon is all too familiar in many countries. It has not arisen in Britian in modern times and our constitutional law books are silent on its. Legal consequences. Briefly, one can say that the judges and officials are not obliged to recognize the validity of such a proclamation, any more than they are obliged to accept any other revolutionary, coup detat but that if they defy the mailed fist, they cannot expect to retain office for long. If they do recognize the supersession of the old order as valid, successful revolution has begotten its own legality If the ordinary Courts are still sitting, it seems that they have jurisdiction to determine 'whether a state of war' (not necessarily war in the international sense, but a state of affairs requiring military pacification' by the imposition of martial law) exists in an area where they normally have jurisdiction. In determining this question, they will give heavy weight to the opinion of the local military commander, but his opinion is not binding on them."

' It must be remembered that Britain has no written Constitution. At page 115 of Corpus Juris Secundum, Vol. XCIII by Francis, J. Ludes and Harold J. Gilbert it is laid dawn that "The term -"Martial Law" carries no precise meaning and has been employed in various ways by different people and at different times. Generally speaking, martial law or, more properly, martial rule, is the temporary Government and control by military force and authority of territory in which by reason of the existence of war or public commotion, the civil government is inadequate to the preservation of order and the enforcement of law. In strictness it is not law at all, but rather a cessation of all municipal law, as an incident of the jus belli, and because of paramount necessity, and depends, for its existence, operation, and extent, on the imminence of public peril and the obligation to provide for the general safety. It is essentially a law of rule of force, a purely military measure, and in final analysis is merely the will of the officer commanding the military forces. It has been held that qualified martial law cannot exist, since there is no middle ground or twilight Zone between government by law and martial rule".

' At page 349 of Corpus Juris Secundum, Vol. VI, under the heading relation of Military to Civil Authority it is mentioned that the military power in the United States is subordinate to the civil power, except in in time of war or public danger, when the civil power is temporarily suspended.

However, the actions of proper officers in the military forces done in some administrative proceeding and not in conflict with any statute will not be reviewed by the civil Courts. It is unusal for a military commander to exercise the right to erect Courts, and nothing will be presumed in favour of tribunals so established.

' It is, therefore, quite obvious that even under the American Written Constitution where Martial Law is provided the establishment of Courts by Military Commanders is not recognised. From Current Legal Problems 1965, Vol. 18 edited by George W. Keeton and Schwarzenberger, from page 65 under the heading" Constitutional Law the following few lines are given.

"The crudities of martial law, suspension and dispensing, star chambers and like machinery are replaced by democratically enacted laws, Singapore, for example, has one for the security service and one for the police force."

' There are three states of 'affairs which germane through the situation i,e, civil disorder, namely, riot, rebellion and insurrection. The learned Attorney-General was unable to place the situation even within the category of rebellion in the country. All that at best can be said is that the riots spread in the streets on account of the alleged rigging of the elections and the demand of the people for fresh polls. In such circumstances the situation has been discussed in Current Legal Problems 1949, Vol. 2 at page 198. The paragraph opens ; "Public meetings may develop into riots at common law or by statute. At common law a riot involves a tumultuous or disturbance of the peace by three persons or more assembling together of their own authority with mutual intent to assist one another against any opposition in the execution of some private purpose and afterwards actually executing it to the terror of the people whether the act intended is lawful or not . . . . Riot in England was made a statutory offence by the Riot Act, 1914 and duty has been cast upon justices of peace and Sheriff of the County or the Mayor to go to the place where the rioters are assembled and make a proclamation in a prescribed form ordering them to disperse. If persons to the number of twelve or more unlawfully, riotously and tumultuously remain or continue together for one hour after such proclamation they are guilty of felony. The proclamation must be read in a loud voice. It must be read verbatim and in its entirety. If the proclamation is read more than once the period of one hour is to be computed from the time of the first reading. If any person wilfully and forcibly opposes the reading of the proclamation he too is guilty of felony punishable with penal servitude for life. Even though the proclamation under the Act has not been read the rioters may still be guilty of the felony at common law. In cases where rioters do not disperse after the reading of the proclamation, the Magistrates are entitled to call on the Military Authorities and all private persons to assist them in suppressing the riot. The military Officer may act without any Magistrate, but no prudent military man would do so, because his acting may be attended with the loss of life; but if a Magistrate gives him an order to act, that is all that is required. The other statute dealing with damage by rioters is the Riot (Damages) Act, 1886. Where a house, shop or building has been injured or destroyed, or the property therein has been injured, stolen or destroyed, by any person riotously and tumultuously assembled together, compensation will be paid out of the police rate of the district to any person who has sustained loss by such injury, stealing or destruction. The broad principle, therefore, is that force can be repelled by force necessary to repel the same in restoring law and order. As discussed above the trial by Military Courts is unknown to British Law.

We repeatedly called upon the learned Attorney-General to apprise us as to whether Martial Law has been imposed in Ireland where the tumultuous situation has been prevalent for a pretty long time. The Irish people are fighting for certain rights. There have been acts of violence murder, arson and looting as reported in the International Press. The learned Attorney-General did not inform the Court about the existence of Martial Law in Ireland. In fact I have referred to various books of Jurisprudence that Martial Law is not known in the British Kingdom ever since the first World War.

Since then only aliens were tried by court martial while Her Majesty's subjects in England were tried by ordinary civil Courts.

19. It has also been noticed from the above discussion that courts martial are not regular Courts and by no stretch of imagination can be called Courts established by law. I am afraid, I cannot agree with the learned Attorney-General that courts martial are Courts established by law under Article 175 of the Contitution. Courts Martial are convened and are never permanent. Whenever there is an offence a court martial is convened. "Establish" in Shorter Oxford Dictionary, Vol. I, 3rd Edn., Reprint 1950-52, is defined to mean to fix, institute or ordain permanently, to set up or bring about permanently. The following observation from Asma Jillani's case at page 237 is also relevant : "An order passed under Martial Law Regulation 78 by a Martial Law Authority could not, however, be challenged by virtue of Presidential Order 3 of 1969. The object with which this Regulation was issued was, therefore, to interfere with the judicial functions of Courts.

' As both President's Order No, 3 of 1969 and Martial Law Regulation 78 were intended to deny to the Courts the performance of their judicial functions, an object opposed to the concept of law. Neither would be recognised by Courts as law."

' There are also valuable observations on page 136 of the book "Rights of the People by William 0.

Douglas Judge U. S. Supreme Court.

20. In S. R. 0. No, 353(1)/77 dated 21st March 1977, the powers conferred on the Federal Government by the Rules under subsection (1) of section 3 of the Defence of Pakistan Ordinance, 1971, were to be exercised by the Chief of the Army Staff and Officers subordinate to and authorised by him under subsection (4) of section 3 of the said Ordinance. The trial for offences under the D. P. R. Have to be by a Special Tribunal, the constitution of which is mentioned under section 8 of the Ordinance. It shall consist of three members appointed by the Federal Government, and no person shall be appointed as a Member of the Special Tribunal unless he is qualified for appointment as a Judge of the High Court and has for a total period of not less than three years exercised power under the Criminal Procedure Code of anyone or more of the following, namely, Sessions Judge, Additional Sessions Judge; District Magistrate; or Additional District Magistrate. I wonder, if any of the Army personnel has the qualification to constitute a Tribunal of this nature. Therefore there could be no trial by Military Court or Summary Court or Court Martial of any of the offences under the Defence of Pakistan Rules.

21. We have already observed that the amendments made in Army Act including certain offences by Pakistan Army Amendment Act of 1977, have no nexus and as such there could not be any trial.

During the period a Nurse of the Lady Willington Hospital was murdered by her paramour on account of rivalry, the accused was challaned under section 302, P. P. C. And was produced before Military Court for trial. How could it be done ?

' Under subsection (4) of section 4 of the Seventh Constitutional Amendmant Act, 1977, any proceedings initiated under Article 199 in any High Court had to remain suspended for the period during which the Armed Forces were acting in civil aid. What is the fault of a so use who intends to challenge an order passed by the Family Court in which no appeal lies by a writ petition and how can a petition of a person remain suspended who has been dealt with by a public functionary in Lahore deciding some civil dispute where allegation is made that she has acted without lawful authority.

' The upshot of the discussion is that examining the jurisdictional facts and from documents placed on the record, I am of the view that jurisdiction of this Court is not impaired or ousted by the Seventh Constitutional Amendment Act of 1977 or by sub-Article 3 or 5 of Article 199, for: - "(a) There can be no Martial Law and in fact there is no Martial Law within the District of Lahore and as such there is no question of the will of Commander prevailing in the. Administration nor for that matter can anyone style himself as 'Martial Law Administrator;

(b) Army has come in aid of civil power and can only assist the civil administration whenever their services are required to suppress riots in the streets ;

(c) The Armed Forces have to act within the four-corners of Article 245 with utmost care and responsibility as they are in service of the nation and own allegiance to Pakistan. Neither Army can exist without the Nation nor Naticn can live in safety without the Army. It should be borne in mind that any act in derogation of alleged overstepping the authority vested in them is likely to impair the immage of the Army and.May also subject them to penal action.

(d) The Army has convened Summary Military Courts and punished alleged offenders while they can only arrest and produce them for trial before ordinary Courts. Shooting is alleged during the period of relaxation of curfew, while the only power vested in them is to arrest curfew breakers and produce them for trial before the tribunal constituted under Defence of Pakistan Ordinance. In no case the security forces have unbridled power to shoot at persons, either the curfew breakers or the persons moving in the streets during the relaxation period ;

(e) They have stepped into the field of legislation by issuing instructions and orders as Martial Law Administrators, which are beyond the scope of Article 245. There has been allegation that curfew has been clamped during hours of prayers in the Islamic State of Pakistan, to which they are the defenders of the territory, ideology and its religion. Old, sick and infirm persons have not been permitted to use any vehicle to reach the mosques.

( f ) Sub-Article (3) of Article 199 of the Constitution is not attracted for the simple reason that no order is prayed for against a member. Of the Armed Forces of Pakistan in respect of his terms and conditions of service or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or a person subject to such law since civilians cannot be subjected to the Army Act especially when we have held that there is no nexus of the crimes brought in under the Army Act by Pakistan Army (Amendment) Act, 1 1977.

(g) Sub-Article (5) of Article 199 of the Constitution does not preclude the jurisdiction of this Court for no order is sought against a Court or Tribunal established under a law relating to the Armed Forces or Pakistan.

' Curfew can be 'clamped when such a situation demands but reasonable time has to be allowed for offering prayers in the mosques. Imposition of curlew for an indefinite period without relaxation of time for prayers in mosques violates Article 20 of the Constitution of the Islamic Republic of Pakistan and the Command of God. Verse 114, on page 25 of Surah Al-Baqarah is reproduced :- {{URDU TEXT}}

114. And who doth greater wrong than who forbiddeth the approach to the sanctuaries of Allah lest His name should be mentioned therein, and striveth for their ruin? As for such, it was never meant that they should enter them except in fear. Theirs is the world in ignominy and theirs in the Hereafter is an awful doom.

22. Before parting with the case, I must mention that I was greatly impressed by the brilliance of performance of learned counsel for the petitioners who have zealously provided enormous assistance with hard work, courage and respect. For the first time, I have seen change in the performance of duties by Mr. Yahya Bakhtiar, Attorney-General for Pakistan, in this case. His attitude was aggressive, annoying and overawing this may be perhaps due to his key-position in the Cabinet or for some other reasons best known to him. In this atmosphere, valuable assistance could not come from him. The Advocate-General Sind, who represented the Federal Government in this case, though adopted the arguments of the learned Attorney-General, but advocated his view point before us in respectful manner.

23. 1 have carefully gone through the proposed judgment of my learned brother Aslam Riaz Hussain C. J., and Karam Elahee Chauhan, J. I agree with the conclusions arrived at by them, but I am persuaded to give my own reasons separately as above.

' ZAKIUDDIN PAL, J.--The main question involved in all these cases is as to whether Martial Law can be imposed and the Armed Forces called upon to act in aid of civil power under the amended Article 245 of the Constitution are acting in aid of the civil authorities or have replaced or superseded them. I have gone through the proposed judgments of my Lord the Chief Justice and my two learned brothers. While respectfully agreeing therewith 1 would like to add a few paragraphs in support thereof. It however, do not intend to reproduce the relevant provisions of law which have been roproduced in extenso in the aforesaid judgments.

' It has been inter alia argued on behalf of the petitioners that the word "directions" as used in clause (1) of Article 245 of the Constitution relates only to first part of clause (1), whereby the Federal Government has been authorised to call the Armed Forces for the purpose of defending Pakistan against external aggression or threat of war and it has got nothing to do with the calling of the Armed Forces for the purpose of acting in aid of civil power as that can be done subject to some specific law existing at the relevant time. It has been argued that if the word "directions" also relates to calling of the Armed Forces to act in aid of civil power then the relevant provisions of law as . Contained in sections 129 to 131, Cr. P. C. Authorising a Magisteate to requisition Armed Forces in situations of necessity would be deemed to have been repealed by necessary implication. It has also been argued that in that case calling of the Armed Forces by the district authorities at Multan and Sialkot to help in controlling the disturbed situation there, would be deemed to be illegal and without jurisdiction as the order in that behalf was never passed by the Federal Government under Article 245(1) of the Constitution. It has been submitted that Martial Law in any manner as described to have been imposed by the Government under Atticle 245 of the Constitution cannot be imposed under any of its provisions. It has also been contended that the amendment in the Army Act by Act X of 1977, introducing clause (iii) in section 2(1)(d) of the Act is bad in law and ultra lires of the Constitution. According to the learned counsel for the petitioners since the Armed Forces in fact are not acting in aid of civil power in the District of Lahore, rather in supersession and replacement thereof, therefore, jurisdiction of this Court has not been ousted under clause (iii) of the amended Article 245 of the Constitution.

' The learned Attorney-General, Mr. Yahya. Bakhtiar, while replying to the aforesaid arguments on behalf of the petitioners, made his submission at length. Briefly he submitted that the Martial Lawn so imposed under Article 245 of the Constitution was Constitutional in nature and was quite different from the previous Martial Laws as imposed by General Muhammad Ayub Khan and General Muhammad Yahya Khan, who had abrogated the Constitution. According to him, even if there is no provision in the Constitution of 1973 to impose Martial Law, the same can yet be imposed under the common law of England. He further submitted that since the civil Courts were working, the provincial Legislature wa functioning and the Executive/Administrative authorities in the District of Lahore were performing their duties, therefore, it could not be said that Armed Forces were not acting in the District in aid of civil power. While defending the amendment in section 2 of the Army Act, Mr. Yahya Bakhtiar submitted that it was not ultra vires and beyond the scope of Article 245 of the Constitution. While referring to various amendment introduced in the Constitution as well as other laws referred to in th judgment of my Lord the Chief Justice, the learned Attorney- General submitted that all such laws made by the Parliament, which was sovereign and could not without any fetters, whatsoever, were valid. He also defended the letter dated 21r4-1977, addressed by Mr. Sadiq Hussain Qureshi, Chief Minister, Punjab, to Corps Commander, Lahore to be quite valid and sent in pursuance of the order dated 21-4-1977, of the Federal Government. He submitted that since there were "directions" by the Federal Government under Article 245(I) of the Constitution issued to the Armed Forces to act in aid, when called upon, and the area where the Armed Forces are acting has been specified and the Armed Forces are actually acting in aid of civil power, jurisdiction of this Court stands ousted and the writ petitions cannot be proceeded with.

' The learned Attorney-General has not been able to point out any provision in the Constitution of 1973, whereunder Martial Law can be imposed. There is no provision for indemnifying the actions of the Armed Forces during the Martial Law period. The contention that the Martial Law in question should be deemed to be constitutional in nature having been imposed on the basis of common law of England has no substance in view of the fact that Pakistan is governed by a written Constitution and anything which is not spelled out from the Constitution cannot be considered to have got any support therefrom. Reliance has been placed on Article 237 of the Constitution to show that since any act on the part of the Federal and Provincial Government Servants performed in connection with the maintenance or restoration of order in any area in Pakistan can be indemnified, therefore, the Armed Forces being under the controla and command of the Federal Government their acts during the Martial Law period, committed in excess of their jurisdiction can be indemnified. The learned Attorney-General, as well as the learned Advocate-General, Punjab, tried to argue on the basis of the aforesaid article that since acts of the Armed Forces could be indemnified, therefore, it could be spelled out from that provision that Martial Law could be imposed. 1 am afraid, the bare reading of Article 257 would show that such interpretation thereof cannot be made the intention of the framers of the Constitution had been to indemnify such acts performed by the Armed Forces during the Martial Law, then mention in terms thereof would have been clearly made in the said provision like the relevant provisions in that behalf of the previous Constitutions. Further, Articles 243 to 245 of the Constitution place the Armed Forces under the control and command of the Federal Government indicating that Martial Law, in any manner, cannot be imposed through the Armed Forces can be called in aid of the civil power. The framers of the Constitution never intended to give such wide powers to the Armed Forces so as to enable them to supersede or replace the civil authority in any manner and as such question of indemnifying the acts of the Armed Forces committed during the Martial Law period in excess of their jurisdiction did not arise. The previous Constitution of Pakistan had provisions relating to indemnity not only for the purpose of passing laws indemnifying the acts done by the Army Officers during the Martial Law but also provided for making of laws validating any sentence passed, punishment inflicted and forfeiture ordered' during that period. Nothing of this kind is spelled out from Articles 337 of 1973 Constitution. As such reliance thereon cannot be placed for imposition of Martial Law in any manner. I do not want to discuss' in detail the kinds of Martial Laws and their effect as this aspect has been dealt with at length by my Lord, the Chief Justice as well as by my two learned brothers.

' Learned counsel for the respondents also relied upon certain passages from "An Introduction to the Study of the Law of the Constitution", 10th Edn. By A. V. Dicey, in order to show that for the purpose of supression of riots or insurrections Armed Forces can be employed. The relevant paras, of the book may be reproduced below for benefit : "Martial Law is sometimes complete as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot or gendally of any violent resistance to the law.' This right, or power, is essential to the very existence of orderly government, and is most. Assuredly recognised in the most ample 'manner by the law of England.

' If then, by Martial Law be meant the power of the government or of loyal citizens to maintain public order, at whatever cost of blood or property may be necessary, Martial Law is assuredly part of the law of England."

' Reliance has also been placed upon Halsbury's Laws of England, Vol. VII, 3rd Edn., p. 260 showing that when a State of actual war, exists the Crown and its officers may use the amount of force necessary in the circumstances to restore order and this use of force is sometimes termed Martial Law. It further indicates that when once the state of actual war, exists, the civil Courts have no authority to call in question the actions of the Military Authorities, but it is for the civil Courts to decide, if their Jurisdiction is invoked, whether a state of war exists which justifies the application of Martial Law. The powers, such as they are, of the military authorities cease and those of the civil Courts resumed ipso facto with the termination of the state of war ; and, in the absence of an Act of indemnity, the civil Courts may inquire into the legality of any thing done during the state of war.

Even if there is an Act of indemnity couched in the usual terms, malicious acts will not be protected.

It has also been argued by the learned counsel for the respondents, while relying on the observations made on page 187 of the reported case of Asma Jilani v. Government of Punjab that Martial Law as a machinery for enforcement of an internal order can be imposed by a proclamation issued under the authority of the civil Government. The relevant para. Of the judgment is reproduced below :- "From the above it is clear that we must distinguish clearly between the enforcement of internal order and Martial Law as a system of military rule of a conquered or invaded alien territory. Martial Law of the first category is normally brought. In by a proclamation issued under the authority of the civil Government only where a situation has arisen in which it has become impossible for the civil Courts and other civil authorities to function. The imposition of Martial Law does not of its own force require the closing of the civil Courts or the abrogation of the authority .Of the civil Government. The maxim: inter armes leges silent, applies in the municiple field only where a situation has arisen in which it has become impossible for the Courts to function, for, on the other hand, it is an equally well-established principle that where the civil Courts are sitting and civil authorities are functioning the establishment of Martial Law cannot be justified. The validity of Martial Law is, in this sense, always a judicial question, for, the Courts have always claimed and have in fact exercised the right to say whether the necessity for the imposition of Martial Law in this limited common law sense existed."

' The arguments referred to above, made by the learned counsel for the respondents have no substance when examined in context of the Constitution of 1973, which governs this country. The conventions which mostly provide the basis for Laws of England may justify the use of force to be termed Martial Law when called to repel insurrections, riot or rebellion amounting to war. Further, it is clear that Martial Law of the kind as described by the Duke of Wellington being the will of the General who command the army is utterly unknown even to the country like England which is not governed by a written Constitution. Even the observations made in PLD 1972 SC 187 do not help the respondents. They have not been made in context of the Constitution of 1973. Though no reference has been made to the relevant provisions as contained in Article 223(a) of 1962 Constitution or Article 278 of. The Interim Constitution of 1972, it appears that the aforesaid observations have been made in context of the said Constitutions. Much stress has been laid by the learned counsel for the respondents upon the observations of their Lordships of the Supreme Court in that case to the effect that Martial Law can be used as a machinery for the enforcement of internal order brought in by a proclamation issued under the authority of the civil Government. According to the Constitution Armed Forces can be called to act in aid of civil power subject to law under Article 245.

The words, "Martial Law", has not been used in the said Article though as discussed above it was used in the predecessor Constitutions of this country. The learned Attorney-General has contended that presence of the Armed Forces in the District of Lahore under Article 245 can be deemed to be in obedience to the imposition of Constitutional Martial Law. The question which arises for33 consideration is as to whether imposition of any kind of Martial Law is spelled out from Article 245 or any other Article of the Constitution. The learned counsel for the respondents have not been able to show any Article in the Constitution indicating that when the Armed Forces are called to restore law and order, they are to act in replacement and supersession, of civil authorities. Imposition of any type of Martial Law means suspension of ordinary Courts and functioning of all civil authorities and temporary or otherwise rule by the Armed Forces of the country ,or any part thereof through military tribunals, Legislative measures, directions etc. The provision of- Article 245 does not N authorise the Ahmad Forces to act in such manner. If they replace or supersede the civil power, issue directions or instructions to that, take over the ordinary administration of the area where they.

Have been called to render aid to the civil authority, take such measures and issue such directions which aim at legislation and law making, then such activities of the Armed Forces would not be within the scope of Article 245. The said Article authorises the Armed Forces to act in aid and not in supersession of civil authority.

' Viewed from that angle, if the relevant material placed on record is examined it shows that officers of the Armed Forces deployed in the District of Lahore for the purpose of rendering aid to civil authority, have styled themselves as Martial Law Administrators/Officers of various Zones and sectors established in the District of Lahore.. The said Army Officers are not only doing executive and administrative work, but also holding courts martial of exclusive jurisdiction for certain offences committed within the area where the Armed Forces have been called, irrespective of the fact whether those offences have any nexas with the law and order situation. The said Officers have been issuing instructions and orders as Martial Law Authorities, violation whereof has been made punishable by the courts martial. All this obviously shows that the Armed Forces have been acting in supersession and replacement of civil authority and not in aid thereof. As such it cannot be said that the Armed Forces are acting as a machinery for the purpose of enforcing the internal order and quelling the disturbances in compliance with the directions issued by the competent civil authorities as envisaged by Article 245. It is, however, a different matter that some extra- Constitutional action is taken by the Armed Forces. In that event validity of such action will have to be examined in terms of its being effective and law of necessity which may or may not justify such action.

' The Pakistan Army Act was amended by Act X of 1977 on 29-4-1977 with retrospective effect from 21-4-1977. It extended to the area where the Armed Forces were acting for the time being in aid of the civil power in pursuance of Article 245 of the Constitution. It was to remain in force till such time, the Armed Forces were to act in aid of the civil power, Section 4 of Act X of 1977 provides that notwithstanding anything contained in the Code of Criminal Procedure, Pakistan Army Act of 1952 or any other law for the time being in force, the offences mentioned in paragraph (iii) of clause (d) and clause (dd) of subsection (I) of section 2 of the said Act shall be triable exclusively by a court martial held thereunder; provided that an officer authorised in this behalf by the Chief of the Army Staff may, by order in writing, transfer any such case for trial to any Court or Tribunal of competent jurisdiction.

' The aforesaid amendment in the Army Act has made the civil population amenable to the jurisdiction of courts martial for the offences which were previously triable by the ordinary civil Courts. It is also to be noticed that the civil population is to be tried for the said offences, irrespective of the fact whether they have any nexus or connection with the object for which the Army has been called under Article 245, i,e,, rendering aid to the civil authority. It has been argued by the learned counsel for the respondents that since the Army Officers concerned authorised in this behalf by the Chief of the Army Staff could transfer such cases for trial to the ordinary civil Courts or tribunals of competent jurisdiction, thereforce, it cannot be said that the aforesaid amendment in the Army Act is beyond the scope of Article 245. The fact remains that irrespective of that discretion the courts martial have started trying the civil population for the offences which have no nexus, at all, with the law and order situation prevailing at present in the country for the maintenance of which the Armed Forces are obliged to render aid to the civil authority. To act in aid means, rendering assistance as desired by the civil authority It does not mean its replacement or supersession or in other words that when the Armed Forces are called within the Lahore District to act in aid, the civil authority will go into oblivion and the Armed Forces would establish courts martial in supersession of the ordinary criminal Courts, start legislating over the head of the Provincial Legislature and start giving directions, instructions and orders completely ignoring the competent civil authority. Such situation being proved on record the arguments of the learned counsel for the respondents trying to show the aforesaid amendment in the Army Act within the scope of Article 245 have no substance.

' Further, the amendment as made in the Defence of Pakistan Ordinance through Act XI of 1977 is yet another step which is beyond the scope of Article 245. The newly-added section 15-A of the aforesaid Act XI of 1977 reads as follows :- "Power to prohibit persons from moving out of doors.-(1) Any officer of the Armed Forces of Pakistan by whom the powers conferred upon the Federal Government by any rules made under section 3 are for the time being exerciseable may, by order, direct that, subject to any exemption specified in such order, no person present within any specified area shall, between such hours as may be so specified, be out of doors except under the authority of a written permit granted by an authority or person so specified.

(3) Any officer of the Armed Forces of Pakistan, or any officer of the Federal Security Force or any other armed forces operating under the command of an officer of the Armed Forces of Pakistan, engaged in enforcing compliance with an order made under subsection (1) may shoot at sight any person contravening the order so as to cause the death of, or other harm to, such person, if in his opinion, which shall be final, it is necessary to do so."

' As is clear from the amended law, the Armed Forces have been authorised to issue directions that no person within any specified area shall, between the hours as specified by them, come out of his house except under the authority of a written permit. It also gives authority to an Army Officer to shoot at sight any person violating the order in the nature of curfew under subsection (1) of section 15-A of the Ordinance. The question which needs consideration is as to whether the aforesaid amendment is within the scope of Article 245, which aims at calling the Armed Forces to act in aid of the civil authority. If an Army Officer himself is to issue a direction within his own discretion prohibiting the inhabitants of a particular area from coming out of their houses and can shoot any person at sight violating the said order, can he be deemed to be acting in aid? If some directions are issued by a competent civil authority and an Army Officer is called upon to implement them, then while carrying out the same, he may be deemed to be acting in aid and not otherwise.

Similarly subsection (3) of section 15-A of the Defence of Pakistan Ordinance being beyond the scope of Article 245, is ultra vires. It is for the competent civil authority to determine as to what quantum of force is to be used against the persons violating certain order and creating law and order situation. Any lawful order passed in this behalf by the said civil authority may be carried out by the Armed Forces and in that situation the forces may be deemed to be acting in aid. If an Army Officer, himself, starts shooting the persons violating any order- in the absence of any direction given to him by a competent civil authority, then he cannot be deemed to be acting within the scope of Article 245.

' It may be noticed that the framers of 1973 Constitution have been very careful in not giving any such power to the Armed Forces which is now being given to them through the aforesaid sub- constitutional legislation. I am afraid the aforesaid legislation being in direct conflict with Article 245 cannot be sustained until and unless scope of the Article is widened and such powers which are aimed to be given to the Army Officers by the aforesaid amendment are given to them by amending the Constitution. If the Legislature had intended to give such powers to the Army then the scope of Article 245 would have been determined accordingly. In the absence of that, the aforesaid sub-Constitutional legislation cannot be maintained. Article 245 of the Constitution obliges the Armed Forces to act in aid of civil power subject to law when called upon to do so. It has been argued by the learned counsel for the respondents particularly Mr. Yahya Bukhtiar, learned Attorney-General that the law according to which the Armed Forces are required to act, has been promulgated in the form of Act X of 1977 as well as Act XI of 1977 introducing the amendments in the Army Act as well as the Defence of Pakistan Ordinance. It has also been argued that the words 'subject to law' as used in Article 245 do not mean already existing law at the time when the Armed Forces are called to act in aid. Such law can be promulgated even subsequently after the Forces have been called. It may be so but the question which asises for consideration is whether the above-mentioned two enactments being in conflict with Article 245 can be followed by the Armed Forces and as such whether it can be said that while acting under Acts X and XI of 1977 they would be acting in aid of civil authority as contemplated by the Article.

Any ordinary law enacted by the Government cannot enlarge the scope of Article 245 and if it is intended so then the Article itself may be amended so as to enlarge its scope authorising the Army to act in the manner as envisaged by the aforesaid sub-constitutional legislation. It has already been held above that Acts X and XI of 1977 being beyond the scope of Article 245 are not valid laws and that being the position, question of enforcing and following the said enactments does not arise. The Armed Forces cannot act according to the manner provided therein. The Constituent Assembly while framing the 1973 Constitution never intended that unreasonably wide powers may be given to the Government particularly the head of the Government so that the Armed Forces may not be used to indulge in coercive and repressive methods, so as to prevent even the genuine political forces in the country to bring about any change by Constitutional means. I am of the view that particularly on account of that, scope of Article 245 was restricted, authorising the Government to call the Armed Forces only for the purpose of rendering aid to the civil authority and not in 'order to supersede or replace it. When the Armed Forces otherwise called upon to act in aid start transgressing the limits prescribed by Article 245 then their actions as such cannot be ,sustained in law. The purpose of the words "subject to law" inserted in the Article is to place restrictions upon the Armed Forces to act in accordance with the law framed within the scope of the Article. The argument put forward by the learned Attorney-General that the words: ' The to law" do not mean pre-existing law at the time when the Ahmed Forces are called, as such law can be enacted subsequently regulating the functions, powers and activities of the Armed Forces may be true but the fact remains that any such ordinary law enacted in this behalf cannot change or enlarge the scope of Article 245. If such law tries to enlarge the scope, then it cannot be sustained being in conflict with the Constitutional provision.

' As to the point whether the word "directions" used in Article 245 covers both parts of the provision or only the first part, it has, been submitted by the learned counsel for the petitioners that second part starting from the word 'and' being quite separate is not covered by the said word. According to them the directions issued by the Federal Government only relate to the defence of Pakistan against external aggression or threat of war by the Armed Forces, and for the purpose of calling the forces to act in aid of civil power, some pre-existing law in this behalf is required otherwise the Federal Government would not be competent to call the Armed Forces. If we carefully examine the language of Article 245 we will find' that the word 'directions' cover both parts of the Article. The word 'and' used after "war" and before "subject to law" makes it clear that the directions issued by the Federal Government to the Armed Forces would not only relate to defence of Pakistan against external aggression but also calling of the Armed Forces to act in aid of civil power. The argument that in view of this interpretation the relevant provisions as contained in sections 129 to 131, Cr. P. C.

Would become redundant has no substance in view of the fact that so far as the Federal Government is concerned it has got authority to call Armed Forces in aid of civil power which are obliged to act subject to law whether pre-existing or enacted subsequently. There is no doubt that a competent Magistrate can also call army to render aid in the given circumstances under the aforesaid provisions of Cr. P. C. But that however, does not mean that the power given to the Federal Government under Article 245 cannot be exercised in the presence of the aforesaid provisions of Cr. P. C. If the interpretation as made by the learned counsel for the petitioners is accepted then it will lead to difficult situation. It would mean that howsoever critical or difficult situation may obtain in a province or a particular place in the country, the Federal Government would not be competent to call the Armed Forces to render assistance to the civil power and this would be done only by a Magistrate authorised to act in this behalf under sections 129 to 131, Cr. P.

C. The only proper interpretation, therefore, would be that both the authorities i. e. Federal Government as well as a Magistrate can call upon Armed Forces under Article 245, and the aforesaid sections of Cr. P. C. Respectively to act in aid of civil power.

' The President of Pakistan amended the proclamation of emergency already in existence in exercise of his powers under Article 236 of the Constitution. The following amendment was introduced- "and by internal disturbances beyond the powers of Provincial Government to control."

' In view of that the Federal Government issued a direction to the Armed Forces under Article 245(i) of the Constitution to act in aid of civil power whenever called upon by the Chief Minister of a Province. Mr. Sadiq Hussain Qureshi then Chief Minister of Punjab passed the following order in pursuance of the said direction of the Federal Government calling upon the Armed Forces to act in aid of civil power in the District of Lahore :- "Pursuant to the order dated 21-4-1977 of the Federal Government I do hereby call upon you to act in aid of civil power and exercise such powers and perform such functions as may be deemed necessary for the maintenance of law and order and security within the revenue limits of the Lahore District."

' The Chief Minister on the one hand called upon the Armed Forces to act in aid of civil power while on the other he gave them wide powers to employ such measures as may be deemed necessary for the maintenance of law and order. It means that the forces were otherwise given free hand to act in any manner they liked, while according to law they could not transgress the limit prescribed by Article 245. As discussed above it is not within their power to replace or supersede the civil authority while acting in aid thereof. The question which arises for consideration is whether the order passed by the Chief Minister calling upon the Armed Forces is in conformity with the direction issued by the Federal Government as well as the relevant law on the subject. The Federal Government directed the Armed Forces to act in aid of civil power when called upon to do so by the Chief Minister of a province in such areas as may be specified by him. The direction as such was to act in aid of civil power on the call of a Chief Minister. This direction did not allow the Armed Forces to' employ any measures they deemed necessary to maintain law and order. It was issued in pursuance of Article 245(i) of the Constitution authorising the Federal Government to call upon- the Armed Forces to act in aid of civil power. It obviously memt to authorise the Armed Forces to act in accordance with law not superseding or replacing the civil authority. If the Armed Forces are given wide powers to employ any measures deemed necessary by them for maintenance of law and order, it would mean that they would he permitted even to supersede civil authority which is otherwise not intended by law. As discussed above, the Punjab Chief Minister could only ask the Armed Forces in pursuance of the direction issued by the Federal Government to act in aid of civil power within a specified area. He could not authorise them to employ such measures which may be deemed necessary by them to maintain law and order, as employment of such measures could only be in accordance with law and could not be left to the discretion or sweet will of the Armed Forces. The law does not permit the Armed Forces to employ any measures deemed necessary by them for the purposes of maintenance of law and order. They have to act within the limits prescribed by law i,e, acting in aid of civil power. If they are given free hand as referred to above then it cannot be said that they have been called upon to act in aid of civil power. Rather they would be allowed to conduct themselves in a manner which may supersede the competent civil authority. This being not the intention of law the order passed by the Chief Minister oft 24-11-1977 in pursuance of the direction issued by the Federal Government cannot be sustained in law. There being no valid order passed by the Chief Minister in pursuance of the direction issued by the Federal Government the Armed Forces cannot act in compliance thereof.

' The learned Attorney-General of Pakistan has argued that Legislature being supreme in all respects can enact any law it likes and there are no fetters whatsoever placed upon its power in this behalf. He has argued that there being no basic structure of the Constitution, any sort of amendment can be introduced therein by the Legislature. When asked as to whether the Legislature is supreme to the extent of deleting Article 2 of 1973 Constitution declaring that Islam shall be the State religion of Pakistan, undoing two nation theory basis for the creation of Pakistan or even federating or confederating with India at any stage, he replied that the Legislature being supreme would be competent to amend the Constitution with regard to any of the above matters, though such matters being -hypothetical in nature would never be dealt with by the Legislature.

' Though this. Aspect of the matter has not been argued at very length yet it appears necessary to dilate upon the same to some extent. Article 238, (Part XI) of the Constitution provides that constitution may be amended by act of parliament. Article 239, provides the procedure if adopted for amending any provision of the Constitution then it shall stand amended in accordance with the terms of the bill passed in this behalf. Whether the word "amendment" as used in Articles 238 and 239, postulates change in the basic structure as well as framework and essential features of the Constitution. Islam being the basis for the creation of Pakistan, the entire structure of the Constitution is based upon that. The Legislature in the, circumstances cannot amend the Constitution in any manner so as to make it un-Islamic. Article 2, declaring Islam to be the state religion of Pakistan cannot be deleted by way of amendment under Article 238. The Legislature cannot declare by amending the Constitution that Pakistan henceforth will be secular and not an Islamic State, as it would amount to undoing the two-nation theory and denouncing the concept of Muslim nation-hood. If, God forbid, such situation arises then federation or confederation of Pakistan with India nay be demanded. There is no doubt that there is nothing in Article 238, which otherwise prohibits the Legislature to amend the Constitution in any manner, but there are certain inherent limitations placed upon its power beyond which it cannot go. The language as used in Articles 238 and 239, indicates that the process of making amendment prescribed by these Articles is a self executing process. It shows that once the procedure prescribed in these articles has been followed then the Constitution will stand amended. It can be argued that in the face of that all the Articles of the Constitution including Article 2, as well as with regard to fundamental rights cannot be excluded from the operation of Articles 238 and 239. It cannot however, be argued that Constitution once framed shall continue, as continuity without change would mean no progress.

The urge for change is always there in the human nature. If change is not allowed to be brought about or the party in power being in brute majority introduces changes in the Constitution resulting in taking away of fundamental rights and curbing of civil liberties then the people may be compelled to employ extra Constitutional means to have the change effected in accordance with their wishes. The framers of the Constitution have, therefore, provided for amendment. It is another matter that such provision may be abused and the Constitution may be arbitrarily amended so as to deprive the people of their lawful rights.

' However, the power to amend the Constitution ' under Article 238, does not mean that Constitution itself can be abrogated or replaced by an entirely new Constitution. What the relevant Article provides is that only such changes which do not demolish the basic structure and essential features of the Constitution can be brought about. If the basic structures and essential features do not survive on account of amendments in then Constitution then such amendments would be beyond the scope of Article 238 as the word 'amendment" postulates the retention of old Constitution with its basic structure, framework and essential features.

' It has been held by a Court of foreign jurisdiction Supreme Court of India in Kesavananda v.

Kerala, that the basic structure of Indian Constitution is built upon the dignity and freedom of individual which is of supreme importance and cannot by any form of amendment be destroyed. It has also been held that although it is permissible under the power of amendment to effect changes howsoever important and to adapt the system to the requirements of changing 'conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern.

The words "amendment of the Constitution" with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It has been held that Parliament would not be competent to change the democratic Government into dictatorship or hereditary monarchy, nor would it be permissible to abolish the parliament.

' It has been observed in that judgment by their Lordships of the Supreme Court of India that secular character of the State cannot be done away with and the provisions regarding the amendment cannot furnish a pretence for subverting the structure of the Constitution nor can Article 368 (Indian Constitution) be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called as its lawful Hara Kiri. It has been held that the words, "amendment of this Constitution" and "the Constitution shall stand amended", in Article 368, show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. It has been held that subject to the retention of the basic structure or framework of the Constitution the power of amendment is plenary and would include within itself the power to add or alter various Articles including those relating to fundmental rights.

' The legislative history of India shows that many amendments were introduced in the Constitution in order to avoid the effect of its various provisions. The first amendment as made in the Constitution of India brought changes in Articles 15 and 19, thereof and inserted Articles 31-A and 31-B. The validity of the amendment was challenged in Sankari Prasad v. Union of India. It was contended before the Supreme Court that the first amendment, in so far as it purported to take away or abridge the lights conferred by Part III of the Constitution, fell within the prohibition of Article 13(2), of the Constitution. The Court unanimously held that the word, "law" in Article 13(2) was relatable to exercise of ordinary legislative powers and not amendments to the Constitution and that the terms of Article 368, were general to empower the Parliament to amend the Constitution without any exception. The validity of the 17th Amendment Act, 1964 was again challenged before the Supreme Court of Indian in Sajjan Singh v. State of Rajasthan. The majority view held that Article 368, plainly and unambiguously meant amendment of all provisions of the Constitution and that the word, "law" in Article 13(2), did not take in Constitution Amendments.

' A contrary view was, however, held in Golaknath v. State of Punjab, that amendment' of the Constitution was law within the meanings of Article 13(2). It was held that if an amendment took34 35 36 37 away or abridged the fundamental rights it was void.

' The Indian Parliament passed Fourth Amendment Act in order to get over the interpretation given by the Supreme Court of India in State of West Bengal v. Bela Vanerjee, to the word "compensation" for just equivalent or full indemnification for the property expropriated. The Fourth Amendment Act had enacted that no law providing for compulsory acquisition or requisitioning shall be called in question in any Court on the ground that the compensation provided by that law was not adequate. The effect of the amendment was, however, considered by the Supreme Court of India in Vajravelu Mudaliar v. Deputy Collector. It was held that the fact that the Parliament used the same expression, namely `componsation' and 'principles' as were found in Article 31, before the amendment, was clear indication that Parliament accepted the meaning given by the Court to those expressions in Bela Banerjee's case. The Supreme Court of India struck down the Metal Corporation (Acquisition of Undertaking) Act, 1965 by its Judgment in Won of India v. Metal Corporation, on the ground that the principles for determining the compensation laid down in the Act did not represent the just equivalent of the property taken. , However, this decision was upset by the Supreme Court in State of Gujrat v. Shantilal Mangal Das.

However, again, in R. C. Booper v. Union of India (The Bank Nationalisation Case), the Supreme Court of India held by a majority view-ten against one, that even after the Fourth Amendment 'compensation' meant the equivalent in terms of money of the property compulsorily acquired.

' The last case on this point was decided by the Supreme Court of India in 1973 being Kesavananda v. Kerala, wherein the validity of Kerala Land Reforms Amendment Act, 1969 and the Kerala Land Reforms Amendment Act, 1971 was challenged on the ground that some of the provisions thereof violated Articles 14,19(1)( f), 25, 26 and 31 of the Constitution. During the pendency of the writ petition filed in this behalf the Parliament just passed three Constitution amendments, namely the Twenty- fourth, Twenty-fifth and Twenty-ninth Amendment Acts. The first Act amended Article 368, providing that Parliament may in exercise of its constitutional powers amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that Article. The second Act amended Article 31(2), and Article 31(2-A) Section 2 of the amending Act substituted the word, "amount" for the word, "compensation" and provided that no such law shall be called in question in any Court on the ground that the whole or any part of such amount must be given otherwise than in cash. The third amending Act included the Kerala Land Reforms Acts in the Ninth Schedule to the Constitution making them immune from attack on the ground of violation of the fundamental rights. The petition before the Supreme Court of India challenged the validity of all the three Constitution Amendment Acts.

' The argument as raised in Golaknath's case, as referred to above,. Was whether the amending power of the Parliament or the State Legislature, was a constituent power like that of the Constituent Assembly and different from and superior to its ordinary legislative powers and whether the legislation of amendment of Constitution under Article 368, was 'law' within the meanings of Article 13(2) and its validity was subject to the limits contained in it. However, when Kerala case was argued, it was contended whether the power of amending a written Constitution as interpreted in Article 368 of the Constitution was an absolute and all pervading or was inherently limited in its scope by the basic structure and essential features of the Constitution which could not be altered in the exercise of that power. The substance of the judgment delivered by the Supreme Court of India in this case has been given above.

' The objectives with regard to the basic structure, framework and essential features of our Constitution of 1973 have been fully given in the preamble of the Constitution, which is an integral part thereof. It may be mentioned that the relevant record shows as observed by my learned brother Shamim Hussain Kadri, J. In his judgment, that the preamble of the Constitution. Was formally put before the House and voted to be part of the Constitution. Even otherwise the38 39 40 41 42 Constitution itself shows it to be its integral part. The relevant portions of the preamble are given below :- "Whereas sovereignty over the entire Universe - belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within- the limits prescribed by Him is a sacred trust; ' And whereas the State shall exercise its powers and authority through the chosen representatives of the people; ' Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; ' Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah ; ' Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures; ' Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; ' Wherein shall be guaranteed Fundamental Rights, including equality of status, of opportunity before law, social, economic and political and justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; ' Wherein adequate provision shall be made to safeguard the legitimate interests for minorities and backward and depressed classes; ' Wherein the independence of the judiciary shall be fully secured;".

' According to the objectives given in the preamble, the Constitution of Pakistan would be Islamic, Federal and Democratic in character. The various Articles of the Constitution, which need not be referred to here in detail, also show that the Constitution has been framed according to the aforesaid objectives. It means that the essential features and basic structure of our 1973 Constitution are its being Islamic, Federal and Democratic in character.

' The above discussion would show that the scope of Article 238, does not allow such sweeping changes in the Constitution by way of amendment which can destroy its basic structure and essential features, otherwise such amendments would be void being beyond the scope of the relevant Articles. Any addition can be brought about within the broad contours of the preamble and the Constitution to carry out the objectives given in the preamble and the directive principles.

' As mentioned above, if Article 2, is deleted and Parliament by way of amendment decides that Pakistan would be a secular State instead of an Islamic State, will it be permissible under the Constitution? I am afraid, any such amendment introduced in the Constitution would be invalid being beyond the scope of the objectives given in the preamble, aiming at destroying its basic structure. Pakistan has come into being because of Two Nations Theory, its basis being Muslim Nationhood. The preamble and various Articles of the Constitution prove this fact. No amendment under Article 238, can demolish this basic character or structure of the Constitution. The Constitution basically envisages Pakistan to be a Federal and Democratic State. No amendment can destroy this character and any attempt in this behalf would be invalid. Any amendment undermining the dignity and freedom of individual being against the basic structure would also be invalid. It is thus clear that amending power of the Legislature is limited by basic structure of the Constitution.

' As a result of the above discussion it is held that the conditions laid down in Article 245 of the Constitution for the purpose of ousting the jurisdiction of this Court having not been fulfilled this Court has got the jurisdiction to hear and dispose of the cases on merits.

[Mere in italics] PLD 1972 SC 139 PLD 1973 SC 49 PLD 1963 SC 486 PLD 1953 Lah. 528 PLD 1953 Lah. 528 PLD 1972 SC 139 AIR 1946 P C 88 PLD 1963 SC 486 PLD 1966 SC 1 PLD 1951 FC 73 PLD 1953 Lah. 528 AIR 1951 SC 458 AIR 1965 SC 845 AIR 1967 SC 1643 AIR 1973 SC 1461 PLD 1973 SC 49 PLD 1973 SC 49 (1948) 2 Ex. 256 (283) 1970 A C 379 PLD 1968 SC 313 PLD 1969 SC 37 415 U S 566 PLD 1973 SC 514 PLD 1960 SC 307 PLD 1969 SC 344 PLD 1974 SC 109 PLD 1975 SC 506 PLD 1953 Lah. 528 L D 1972 SC 139 PLD 1953 Lah. 528 PLD 1977 Lah. 117 (1798) St. Tr. 613 PLD 1972 SC 187 1973 SCR 9 1952 SCR 89 1965 SCR 938 1967 SCR 1964 SCR 674 965 SCR 614 1967 SCR 255 1969 SCR 341 1970 SCR 530* 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

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