' Petitioner is a claimant displaced person. He having no house in his possession participated in Earmarking Scheme under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 in drawing of lot for the evacuee houses in 1960. He was lucky in respect of two houses, one at Quetta, the other at Lahore bearing No, 96-A, Upper Mall. He gave up the former to take the latter. He paid its transfer price of Rs, 96,000 and was issued P. T.
0. On 1-2-1960 and Permanent Transfer Deed on 16-11-1961, The house happened to be in the occupation of one Col. Mukhtar Hussain, Military Secretary to the then Governor. According to the case of the petitioner, he asked the occupant to pay him the rent of the house. The occupant in turn asked the house to be sold to him and on refual the petitioner was threatened that the occupant would see that the house did not remain with the petitioner, Petitioner protested but the representations bore no fruit. Martial Law Administrator Zone B, Lahore issued Martial Law Order 115 directing the Provincial Government to acquire the house. The petitioner challenged the Order through W. P. 121/1963. The Order was followed by Ordinance XXV of 1963 promulgated on 9th June, 1963 acquiring the house. It was approved by the West Pakistan Provincial Assembly under Article 79(3) of the Constitution on 16th July, 1963. The petitioner was returned the amount paid by him which he received under protest. The Ordinance was challenged through the above titled petition.
The earlier petition on the statement of the learned counsel for the parties having become infructuous was disposed of as such on 28-4-1977. The present petition questions the validity of the Ordinance.
2. Learned counsel for the petitioner contended that the Ordinance is mala fide as it has come about because of the mechanization of the occupant who happened to be the Military Secretary to the Governor and wanted the house to purchase himself. Having been thwarted by refusal, he got the house acquired. Learned counsel for the petitioner vehemently contended that it is open to this Court, rather, it is its duty to declare that what purports to be a law' is not law' if it is not so but a mala fide act of a law-maker. He heavily relied on a decision of a learned Division Bench of the Karachi High Court in Constitutional Petition No, 863 of 1973 titled as Shamimur Rehman v.
Federation of Pakistan and another decided on 9-4-1980, Secondly, that the Ordinance purports to acquire a named individual's house, i,e, petitioner's. It is no 'law' of a general nature but at the most is an exercise of judicial or executive authority which cannot be clothed as law. He placed reliance on Liyanage and others v. Reginam (1) and The Trustees of Dartmouth College v. Woodward (2) and The State v. Zia-ur-Rahman and others (3). Thirdly, that the house worth 16 lacs has been acquired for Rs, 96,000 and it is not adequate compensation, so acquisition is invalid. He referred to a passage at pages 171-2 of the Munir's Commentary on the Constitution of 1962. Fourthly, that the preamble proceeds on the basis that the house was evacuee and the petitioner was only a provisional transferee. The contents of the preamble have to be taken as correct per dictum in Sardar hider Singh v. The State of Rajasthan and others (4). Therefore, the house being evacuee could not have been acquired by the Provincial Authorities without the prior sanction of the Central Government vide section 16 of Pakistan (Administration) of Evacuee Property) Act, 1957 Act XII of 1957 which had, in fact, been refused. Further the Ordinance is violative of Article 234 of the Constitution being inconsistent with Central laws like Land Acquisition Act, etc. And is, therefore, invalid. Alternatively, it is argued that if the house is not evacuee, then, the Ordinance proceeding on wrong premise as it does because it takes it as evacuee, the Ordinance cannot be given effect to by Courts. He placed reliance on Pickin v. British Railways Board and another (5), Fifthly, it is contended that the Ordinance purports to validate actions taken under M. L.
0. 115 but no action had been taken thereunder because the Provincial Government did not acquire the house as directed, Therefore, the Ordinance is infructuous or void.
3. Mr. Tanvir Ahmad Khan, learned Assistant Advocate-General, very diligently argued the case for the respondent. He submitted that question of mala fide does not arise in the circumstances of the case. Neither the Military Secretary could have influenced the Martial Law Administrator or the Governor in issuing the Order or Ordinance nor could the Provincial Assembly be taken to have been influenced by him when it approved the Ordinance. He referred to a number of authorities in support of his contention like The Punjab Province v. Malik Khizar Hayat Khan Tiwana (6), The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (7) and Brig. (Retd.) F. B. All and another v. The State (8). Then, he submitted that the fact that the Ordinance affects one individual, that is, the petitioner, is no reason to say that it is not law. A law can be passed to affect one individual, or one property. He relied upon The Punjab Province v. Malik Khizar Hayat Khan Tiwana, Brig. (Retd.) F. B. Ali and another v. The
(1) (1966) 1 All E R 650 (2)4Wh.USCSL ed 629
(3) PLD 1963 SC 49 (4) AIR 1957 SC 510
(5) (1972) 3 W L R 824 (6) PLD 1956 FC 200
(7) PLD 1974 SC 151 (8) PLD 1975 SC 506 State, Inamur Rehman v. Federation of Pakistan and 3 others (1) and to Damages Act, 1965 avoiding payment of compensation to Burmah-Shell Co. As regards the compensation, the learned Assistant Advocate-General submitted that that is the amount for which the house was transferred to the petitioner and, therefore, that was quite adequate. As regards the contents of the preamble, the learned Assistant Advocate-General submitted that that is only introductory and when the terms of the statute are clear there is no need to look to the preamble. Learned counsel, then, submitted that Permanent Transfer Deed having been issued to the petitioner, the property was no longer evacuee and it vested in the petitioner, therefore, it could be acquired by the Provincial authorities. He has also submitted that question of inconsistency with Central laws, like Land Acquisition Act etc., does not arise because under the scheme of the 1962 Constitution, these were all "existing laws" and could be amended by the Provincial Legislature in whose sphere these were placed. He relied on Saiyyld Abul A'la Maudoodi etc. v. The Government of West Pakistan and the Government of Pakistan (2), Syed Azizuddin v. Abdul Ghafoor "train and three others (3) and Sheikh Atta Muhammad v. Mian Muhammad Abdullah and 10 others (4). As regards validation of the M. L.
0. 115, the learned counsel submits that some steps had been taken under the Order which were saved by the Ordinance. Finally, the learned counsel contended that a law promulgated by a law- making authority has to be given effect notwithstanding its hardships, etc. He placed reliance on The Punjab Province v. Malik Khizar Hayat Khan Tiwana and Mir Said Muhammad and another v. Mir Chakar and others (5). About the judgment from Karachi, the learned counsel submitted that that is not final as appeal to the Supreme Court is most likely, besides that it lays down an unusual proposition of law.
4. Before proceeding . Further, the contention regarding mala fide may be attended to. Not only the Military Secretary cannot be supposed to be so effective as to get a Martial Law Administrator and Governor issue a Martial Law Order and Ordinance but the Order and Ordinance could only be issued after proper advice and on the decision of the authorities themselves. In the present case, the Ordinance has been approved by the Provincial Assembly. Nothing has been stated as to how the Provincial Assembly was effected by any mala fide of the Military Secretary. The contention is without any basis and is repelled as it deserves.
5. The Ordinance in question may be reproduced for facility of reference as below :- "An Ordinance to provide for the acquisition of certain property situate in Mauza Mian Mir, District Lahore for use as residence of Government Officials and to validate actions taken under the Martial Law Order No, 115 issued by the Martial Law Administrator, Zone B.
Whereas the property described in the Schedule was evacuee property and in pursuance of the provisions of the Displaced Persons (Compensation and Rehabilitation Act, 1958 (Act XXVIII of 1958), had been provisionally transferred to Mr. Nasir-ud-Din and party in lieu of ninety-six thousand rupees ;
(1) PLD 1977 Kar. 524 (2) PLD 1964 SC 673
(3) PLD 1964 Kar. 88 (4) PLD 1971 Lah. 210
(5) PLD 1973 Quetta 43 ' And, whereas, the Martial Law Order No, 115 was issued by the Martial Law Administrator, Zone 'B' on the 24th February, 1962, providing for the acquisition of the said property for the purpose of residence of Government Officials ; ' And, whereas, the validity of the said Martial Law Order and the action taken thereunder has been questioned ; ' And, whereas, it is expedient in the public interest to provide for the acquisition of the said property for the purpose of residence of Government Officials and to validate the actions taken in pursuance of the said Martial Law Order No, 115 ; ' And whereas, the Provincial Assembly of West Pakistan is not in session and the Governor of West Pakistan is satisfied that circumstances exist which render immediate legislation necessary ; ' Now, therefore, in exercise of the powers conferred on him by clause (1) of Article 79 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance :- 1.-(1) Short title and commencement.-This Ordinance may be called the West Pakistan Acquisition of Property (Residence of Government Officials) Ordinance, 1963.
(2) It shall come into force at once and shall be deemed to have taken effect on and from the 24th February, 1962.
2. Definitions.-In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say---
(a) "Government" means the Government of West Pakistan ;
(b) "Martial Law Order No, 115" means the Martial Law Order No, 115, issued by the Martial Law Administrator, Zone '13' on the 24th February, 1962, and
(c) "property" means the property described in the Schedule to this Ordinance.
3. Acquisition of property for residence of Government Officials.-Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 (Act I of 1894), the Town Improvement Act, 1922 (Punjab Act IV of 1922), as amended by the Punjab Town Improvement (West Pakistan Amendment) (Ordinance XVIII of 1962), the Municipal Administration Ordinance, 1960 (Ordinance No, X of 1960) or any other law for the time being in force, or in any decree, judgment or order of any Court of Authority-
(a) Government shall forthwith take possession of the property, summarily ejecting, if necessary, any person in occupation of any part thereof ; , (b) Government shall pay, ninety-six thousand rupees by way of compensation to Mr. Nasir-ud- Din and party or any other person found to be entitled thereto.
(c) Thereon the property shall be deemed to .Have been duly acquired by Government free from all encumbrances and the action taken under Martial Law Order No, 115 shall be deemed to have been validly taken under this Ordinance and shall be continued.
Schedule 96-A Upper Mall, Lahore constructed on the land bearing Khasra No, 2057, Mauza Mian Mir, Tehsil and District Lahore, measuring 11 kanals, 7 marks, and 250 square feet and comprising certain buildings and vacant site."
6. The contention as regards validity of the Ordinance being inconsistent with a Central Law, Land Acquisition, Act 1894, is without force as the latter was "existing law" under Article 225 of the Constitution and was subject to A alteration, repeal or amendment by the appropriate Legislature which happened to be Provincial Assembly under the Constitution. Therefore, the contention is repelled.
7. Now come to the contentions which require greater, consideration. The first is that the preamble be taken as it is without question to its contents. The argument is that preamble states that the property has been provisionally transferred to the petitioner. If that be so, it is contended, it would still be vesting in the Central Government under section 3 of the Displaced Persons (Land Settlement) Act, 1958 because it is only after permanent transfer on issuance of Permanent Transfer Deed under the Act and the Scheme thereunder that the property vests in the transferee.
Therefore, the Provincial Legislature would have no right to stretch its hand to acquire property vesting in the Central Government and consequently, the Ordinance would be invalid. If the Court can look into the facts stated in the preamble, it is submitted, it should also look into the fact whether there was any circumstance existing requiring immediate legislation necessary through an Ordinance when the matter could be taken up by the Provincial Assembly which met only a month and a half later. There are two points to be taken into account in this behalf. Firstly, the preamble is not to be referred to unless there is any ambiguity in the enactment. The preamble is only a preface. What I laid down as law is in the enactment part. Secondly, when preamble is referred to, it has to be remembered that it is only introductory and even I the introduction be faulty that would not annul the subject matter deal with in the enactment. Proceedings on these principles, there is no compelling reason to refer the preamble. Statute i. e. The Ordinance is clear.
It purports to acquire the property transferred to the petitioner on payment of certain sum. The preamble is not sacrosanct as the learned counsel for the petitioner wishes it to be, so as to invalidate the Ordinance. There is factual mistake therein when it states that the property has been provisionally transferred to the petitioner. It had, in fact, permanently been transferred to the petitioner and he had been issued the Permanent Transfer Deed prior to the promulgation of the Ordinance. Therefore, there was no question of the property vesting in the Central Government to be beyond the reach of the Provincial Legislature. But the fact that the Court can look into the contents of the preamble does not necessarily mean that in all events it can either start a enquiry or an inquest that the facts stated therein are not correct. It is for the Legislature to see the facts as it finds and proceed on their basis. It is its judgment of the facts and the situation requiring legislation. The Courts do not sit as Appellate Authority of facts over the Legislature. Both institutions are separate and independent in their own sphere. It is only where the Constitution permits one or the other to pass judgment or over rule the other, otherwise, each functions within its own domain. Therefore, the contention of the learned counsel for the petitioner that there was no circumstance to call for immediate legislation by promulgation of the Ordinance cannot be examined by this Court in the circumstances of the case.
8. Now, we come to the crucial controversy as to whether the Ordinanc is law. Law is nowhere defined nor can it be. It is a concept like beauty which one can behold but not define. Description is possible but that doe not tell the whole truth. Beautiful dame can be described as tall and fair with big eyes and long lashes, hanging hair below the waist. But what 9 bewitches the looker is the spirit and animation therein all. Otherwise it may only be a statue of stone. Lord Lawton L. J. In Young v. Sun Allianc and London Insurance Ltd. (1) referred to a mundane aphorism that an elephant is "difficult to define but easy to recognize". This too requires seeing eyes. Otherwise, one can only know the partial truth or falsehood as the story of four blind men unfolds itself when one who touched the legs said that an elephant comprises of pillars like those of a mosque, another who held the trunk that it is like a heaving tree, still another who caught the ears that it is like big fans and the fourth who felt the tail that it is a flexible rod. It is common saying that all that glitters is not gold. So also what may pass as law may not always be law, Consequently, we have to see whether the Ordinance apparently a law is, in fact, a law. Blackstone in his Commentaries, Vol. I, page 25, Third Edition said centuries ago, "Law in its most general and comprehensive sense signifies a rule of action, and is applied indiscriminately, to all kinds of action whether animate or inanimate, rational or irrational, Thus we say, the laws of motion, of gravitation of optics, or mechanics, as well as the laws of nature and of nations." In his treatise on Jurisprudence at page 20 Salmond says, "there are many kinds of law, like, (1), Imperative law, (2) Physical or Scientific law, (3) Natural or Moral law, (4) Convential law, (5) Customary law, (6) Practical or Technical law,
(7) International law, or the law of Nations, (8) Civil law or the law of the State etc." There is one thing worth-noticing and that is that the law is a rule of general application and not for one solitary phenomenon. Generality does not necessarily partake of universality. A law may be passed to deal with some situations, places or persons, may be single one, but that is on the basis of, what is called, reasonable classification as e. g. a law may provide for rationing when goods are not available freely and fairly, tax at places of entertainment or for regulating terms of services of the members of the Armed Forces. But in all events, the classification is reasonable.
Within the category, circumstances being similar, all will be dealt with equally. A law may deal with one property like Taj Mahal, or Badshahi Mosque, or, individual like President, Inspector- General of Police or Prison etc. But the classification is there based on reason as each forms a class by itself because of its unique or distinguished position. What does not come within the idea of law is taking away the property or life of a named individual out o the blue. Again Blackstone has said in his Commentaries at page 30 that "a particular act of the legislature to confiscate the goods of Titius, or to attain him of high treason, does not enter into the idea of a Municipal law ; for the operation of this act is spent upon Titius only, and has no relation to the community in general ; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason ; this has permanency, uniformity and universality, and therefore is properly rule." From the above, it would be clear that if a particular act of the Legislature is to confiscate or acquire the property of a named individual, it would not enter into the idea of law for the reason that its operation is G spent on the individual and it would be, a sentence rather than a law. Blackstone would have not held the Ordinance under question a law as it took away the property of the petitioner but a sentence passed against the latter.
(1) (1976) 3 All E R 561
9. At this stage cases relied upon by the learned Assistant Advocate, Ge .Eral may be referred to. In the F. B. Ali's case, Chief Justice Hamoodur Rehman observed at page 528 of the report that "Law has not been defined in the Constitution of 1962, and, therefore, in its generally accepted connotation, it means positive law, that is to say, a formal pronouncement of the will of the law- giver. There is no such condition that a law must in order to qualify as a law also be based on reason or morality. The Court cannot strike down a law on any such higher ethical notions nor can Courts act on the basis of philosophical concepts as pointed out by me in the case of Asma Jilani." Mr. Justice M. Yaqub Ali observed at page 548 that "It thus becomes clear that the observations made by me in, the cases of Asma Jilani and Manzoor Ilahi are confined to their own facts and do not enunciate that Courts can strike down a law made competently by a legislature on the ground of reason or morality. Laws made by a Legislature can be struck down only if they are repugnant to the provisions of the Fundamental Law under which the Legislature is itself created." Mr. Justice Muhammad Gul at page 555 quoted the learned Chief Justice from Asma Jilani's case to the effect that "So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. This in my view brings in the notion both of legitimacy and efficacy." Mr. Justice Muhammad Gui concluded, "This would exclude from the term "law" what are mere theories and legal concepts". Mr. Justice Anwarul Haq at page 550, however, after pointing out that section 11 of the Frontier Crimes Regulation was not treated as "law" by the Supreme Court of Pakistan, "in spite of the fact that there was no challenge to the competence of the authority which had promulgated the Regulation", observed that "I find it difficult to accept the contention that the term "law" as used in Fundamental Right No, 1 of the 1962 Constitution, should be interpreted as meaning only positive law. On the contrary, the term "law" as used in this Fundamental Right, must be construed as also including judicial principles laid down from time to time by the Superior Courts, and the accepted forms of legal process and jurisdictional norms obtaining in Pakistan.
These accepted judicial principles, forms of legal process and jurisdictional norms are so well established and specific that they cannot be brushed aside as being mere abstract or vague considerations of ethics and morality or philosophical concepts of law. They are not mere theories advanced for purposes of invalidating competently enacted laws on the contrary, they are established rules and concepts which give substance and meaning to all laws by promoting the ends of a just legal order." The facts of the case were that persons not amenable to Army Act were brought within its purview by virtue of the two amending Ordinances III and IV of 1967, if they were involved in seducing the members of the Armed Forces from their duty or allegiance to the Government. The validity of the Ordinances was challenged by the affected persons on the principal grounds that the Central Legislature was not competent to promulgate the Ordinances as that affected laws within the ambit of the Provincial Legislature and that those deprived the challengers of the norms of ordinary trial. The Court unanimously found that the impugned Ordinances, in pith and substance, appertained to the subject over which the Central Legislature had the jurisdiction to make laws and that the Ordinances were valid laws because those were based on reasonable classification of people similarly situated and were by no means contrary to the "equal protection of law" clause. It was observed in this behalf that "The principle is well recognized that a State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities which others do not. What, however, is prohibited under this principle is legislation favouring some within a class and unduly burdening others. Legislation affecting alike all persons similarly situated is not prohibited. The mere fact that legislation is made to apply only to a certain group of persons and not others does not invalidate legislation if it is so made that all persons subject to its terms are treated alike under similar circumstances. This is considered to be permissible classification." A deeper reflection and closer examination of the case would show that it does support the contention of the learned Assistant Advocate-General that since the Ordinance is the formal pronouncement of the will of the Governor, who was competent to make a law through Ordinance under Article 79 of the Constitution, that is that and that is the law. What the learned Chief Justice had observed .Was that the law is "the formal pronouncement of the will of a "competent" "law- giver". In other words, the formal pronouncement of the will has to be of "competent", "law-giver".
The competence has to be judged with reference to the Constitution and the g pronouncer has to be a law-giver. The Constitution did not confer on the Governor the jurisdiction or authority to take away the property, liberty or life of any individual whomsoever he liked. People can be deprived of these in accordance with pre-existing laws through properly constituted Courts. The Governor could not destroy or do away with the third pillar of the State. The Constitution provided for separate Executive, Legislature and Judiciary. The Governor, as a Legislature, could not do what only the Judiciary was authorized to do. Secondly, he could make "law". He was "law-giver". Law means a rule of conduct for all of for a reasonably classified people or property. In the latter category a person or single property, as seen above, may be dealt with as, e. g. a law relating to the Inspector-General of Police or' Prison etc. Similarly, about Shalamar Garden, or Badshahi'
Masjid, etc. But the point is that the subject of legislation is a class apart. The categorization has to be reasonable and person or persons falling within the group have to be dealt with similarly and equally. What is not permissible and is not law is that an edict is issued depriving a named individual without reference to any act or omission on his part of his property, or, life for that matter. The learned Chief Justice had held at page 530 that "what, however, is prohibited under this principle is legislation favouring some within a class and unduly burdening others." In the case in hand the petitioner who has been deprived of an ordinary property I by no means a class by himself. He 'is an ordinary citizen of the State. If h were to be deprived of his property the ordinary law of the land was in th field in the form of Land Acquisition Act for acquiring his property I accordance with the procedure and compensation to be paid thereunder. On the basis of the last mentioned observation of the learned Chief Justice delivering the main judgment of the Court, the Ordinance in question would be prohibited. Therefore, the reliance of the learned Assistant Advocate-General on the case is not quite apt. On the other hand, it goes against him. The majority judgment does not support his unqualified contention. The opinion of Mr. Justice Anwarul Haig as then and now the learned Chief Justice of Pakistan, on the other hand, more juridical and compendiously, if I may say so with utmost respect, supports the case of the petitioner where it was observed at page 550 that 'the term 'law', as used in this Fundamental Right, must be construed as also including the judicial principles laid down from time to time by the superior Courts, and the accepted forms of legal process and juridical norms obtaining in Pakistan." In Malik Khizar Hayat Khan Tiwana's case, facts were that compensation ordinarily available was materially affected by amending legislations which were held to be ultra vires by the High Court.
But before the appeal came up before the Federal Court, the Constituent Assembly validated the amending legislations by validation of Laws Act, 1956. The latter Act was challenged on the ground that the Constituent Assembly could not enact the same under the Independence Act of 1957. The contention was found to be without force as the Assembly was found to have the power under the Constitution (Amendment) Act, 1954, and the Court having no jurisdiction to question the same.
No doubt, Malik Khizar Hayat Khan Tiwana was affected by the amended legislations as validated but that fact by itself would not affect the legislations or their validation for the reason that not only the precise point was not urged but quite often laws are passed affecting one or more individuals but if those are based on reasonable classification as seen above, those are beyond reach and valid. The legislations were based on reasonable classification and might have been upheld by the Federal Court but in its nervousness the Provincial Government got these validated before the appeal could come up for hearing before the Federal Court from the Constituent Assembly and under the Constitution, the Federal Court found it had no jurisdiction to question the same. Therefore, the ratio decidendi of the case is not applicable to the case in hand. So is the position in relation to Inamur Rehman's case from Karachi. Deprivation of Burmah-Shell Co. Of compensation for damages suffered during Second World War by enactment of War Damages Act, 1965, by the British Parliament is on a different plane altogether as there are no legal limits on the omnipotence of the Parliament. This is not so in the case of a Governor created by and deriving power from the Constitution which assigns specific role to the law-maker and the judiciary and neither can entrench upon nor take unto itself the functions which appertain to the other.
10. Deprivation of property, liberty or life of a given individual can only come about when he is heard and adjudged to have contravened a preexisting law by the competent judiciary created by the Constitution and not behind his back by the fiat of a Governor even if garbed as an Ordinance. If it were so, a Governor might exercise legislative and judicial powers in one go and concentrate the powers distributed by the Constitution in three dimensions which will be clearly unconstitutional. In such circumstances, a person sitting in his home peacefully having done nothing unworthy or contrary to law may find himself deprived of his house or life by promulgation of an Ordinance and before he could have recourse to Courts of Law, he may have lost his house or life and may not be there to ask for his default or seek relief. Society cannot survive in these circumstances and that is why laws and Constitution are enacted and promulgated that nobody's property, liberty or life is taken away except upon a judgment or sentence passed by a competent Court. It is trite law that a sentence is passed by a Court of law and not Legislature. This is so because a Court proceeds on the basis of a pre-existing law, allows a hearing to the person concerned and adjudicates upon the matter. The Legislature, on the other hand makes the law anew, is not obliged to hear the persons concerned, nor, does it adjudicate but legislates.
Therefore, the Ordinance under challenge when purports to acquire the property of the petitioner is, in fact, passing a sentence of deprivation of property against the petitioner and is not laying down any law or a norm and for that reason is no law. The matter would be more vivid if we, in place of property, substitute the person of the petitioner. The Ordinance would then read to deprive the petitioner of his person, It would look atrocious on the face of it. Could any body with any sense of justice or fairness urge that a Governor under his Ordinance making power has the authority to make a law saying that so and so, may be his private enemy, is hereby deprived of his life. Claim for making such a law has never been made by any ruler, king, conqueror or a dictator.
Much less can such a claim be urged on behalf of a Legislature created by a Constitution which says that "it is the will of the people of Pakistan that-"the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, should be fully observed in Pakistan."
11. In Lilyanage and others v. Reginam, several persons were charged with offences arising out of an abortive coup d'etat on January 27, 1962, whose names were mentioned in the White Paper.
Two Acts were passed to be effective from January, 1962, and limited to those accused of the offences against the State in or about January 27, 1962, providing for fresh procedure and prescribed, punishment and forfeiture of the property. On appeal to the Privy Council, it was held that under the Constitution of Ceylon, there was a separation of powers, and the power of the judicature while the Constitution stood, could not be usurped or infringed by the executive or the legislature and further at page 659 of the report that "It goes without saying that the Legislature may legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence. But the Acts of 1962, had no such general intention, They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. The fact that the learned Judges declined to convict some of the prisoners is not to the point. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general, law, is shown by the fact that the effect of those alterations was to be limited to the participant in the January coup and that after these had been dealt with by the Judges, the law should revert to its normal state.
' Such a lack of generality, however, in criminal legislation need not, of itself, involve the judicial function, and their Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power. Nor do they find it necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such an interference. Each case must be decided in the light of its own facts and circumstances including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings. It is therefore necessary to consider more closely the nature of the legislation challenged in this appeal.
' Counsel for the appellants succinctly summarises his attack on the Acts in question as follows.
The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them, ' In their Lordships' view that cogent summary fairly -described the effect of the Acts. As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference ; that it was not only the likely but the intended effect of the impugned enactments ; and that it is fatal to their validity. The true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the Judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years' imprisonment, and compelled to order confiscation of his possessions, even though his part in the conspiracy might have been trivial," Their Lordships of the Privy Council referred the case of Calder v. Bull of the United States Supeme Court (1) where Chase, J., held that "These Acts , were legislative judgments and an exercise of judicial power," The Privy Council held the impugned Acts to be ultra vires and invalid.
12. A word may be said about the argument of the learned Assistant Advocate-General with reference to Dicey's statement in relation to Parliamentary sovereignty that the Parliament has the power to make or unmake any law, including that all blue-eyed babies shall be killed. Besides that it was a treatise for initiating students in the study of the British Constitution and was meant to emphasise the theoretical principle that laws of England do not put any limitation on the authority of the Parliament to make any law it chooses and has proceeded to point out the practical limitations on the powers of the Parliament but the argument loses sight of the fact that in England law is to be passed by the Parliament consisting of the representatives of the people, House of Commons, elite of the nation both temporal as well as the spiritual, House of Lords, and the King or the Queen as the case may be. In England, no individual, not even the Queen-has any right of its own to make any law. Moreover, the theoretical enunciation still speaks of law of a general nature, all blue-eyed babies-and not of Mr. Jone's. Further, laws made by the Parliament are binding on all including the Courts. These have no existence or authority of their own independent of the Parliament. That does not hold true in cases of written Constitutions where Courts are established by the Constitution and have their own separate and independent existence and functions and also normally endowned with the jurisdiction to annul laws passed by the Legislature if those happen to be contrary or ultra vires the Constitution (See The State v. Ziaur Rehman etc. (2). So was the case under the Constitution of 1962 in the purported exercise of power derived whereunder, the impugned Ordinance was promulgated. Therefore, the reference to the theoretical principle of Parliamentary Supremacy under the British Constitution without taking into account the practical and inherent limitations thereon in relation to Pakistan is not quite sound.
(1) (1789) 3 Dallas USSC 386 (2) PLD 1973 SC 49
13. In view of What has been stated above, the impugned Ordinance is not a law in accordance with the Constitution but a judgment and the maker had no authority to pass a sentence. For non-affording an opportunity of being heard before condemnation would render the judgment or sentence null and void. Even All Mighty All Knowing God without first laying down the norm that all angels should prostrate before Adam, and when the Devil did not do so, without affording the latter an opport unit of being heard, did not throw out the Devil of his abode in heaven. Mortal exercising authority on behalf of the people under a Constitution can hardly take to himself powers more than that of his Creator. From all angles, the impugned Ordinance is neither law nor valid. It is declared to have no legal effect. The petition is thus allowed with costs.