SHAMIMUR REHMAN vs GOVERNMENT OF PAKISTAN AND OTHERS

1. ' S. A. NUSRAT, J.-This petition has been brought to challenge the Martial Law Regulation No, 103 and the Order No, 22 of 1972, issued thereunder. The said Regulation and the Order, were published on 31-12-1971 and 22-4-1972 respectively in the Gazette of Pakistan, Extraordinary. The resultof the making of the above instruments was that the Company, known as `Rehmania Fauji Sugar Mills Limited", stood dissolved and the petitioner and his mother, Begum Shamim Khatoon, who were promoters of the company and their group, were divested of all their interest in the Company and deprived of the control and Management of its Sugar Mill and all rithts, properties, assets, debts, liabilities and obligations of the Company were forthwith transferred to the respondent No, 2.

2. The facts disclosed in the petition are: that the petitioner and his mother had promoted and got incorporated a company styled as 'Rehmania Fauji Sugar Mills Limited' in 1969, as a Company limited by shares under the provisions of the Companies Act, 1913. The initial participants in the equity of the Company were mainly two groups of shareholders viz. The Rehmania Group, comprising the petitioner and his family, friends and associates and the Army Welfare and Rehabilitation Directorate (hereinafter referred to as "the Directorate").

2. ' The initial paid up capital of the Company was Rs, 2.50 crores and the contribution made by the Rehmania Group and the Army Welfare and Rehabilitation Directorate was as under:- {{TABLE}}

(a) The petitioner, his family and associates . . . ; ...... Rs, 1,00,00,000.

(b) The Army Welfare and Rehabilitation Directorate........... Rs, 25,00,000. {{TABLE}} ' The balance amount of Rs, 1,25,00,000, was to be subscribed by the public and other financial Institutions on the issuance of invitation for public subscription. Meanwhile through the efforts of the Rehmania Group bridging loans were obtained from the following two institutions, repayable on receipt of public subscriptions: {{TABLE}}

(1) P. I. C. I C Rs, 50,00,00.

(ii) I. D. P Rs, 75,00,000.

3. TOTAL . . . . Rs, 1,25,00,000. {{TABLE}} ' Further amounts, as under, were procured by issuing debentures:- {{TABLE}}

(1) National Investment Trust .. Rs, 10,00,000.

(ii) Investment Corporation of Pakistan................ Rs, 25,00,000.

(iii) Army Welfare and Rehabilitation Directorate Rs, 40,00,000.

(iv) Petitioner and his Rs, 25,00,000.

4. Associates TOTAL Rta. 1,00,00,000. {{TABLE}} ' In addition, the following foreign exchange loans were procured for the purchase of machinery and spare parts. Etc. {{TABLE}}

(i) Suppliers' credit by Messrs A. W. Smith ......................... 20,50,000.

(ii) National and Grindlays Bank through its London Office . . . 2,00,000.

(iii) P. I. C. I. C. 60,000. {{TABLE}} ' Besides the petitioner, his family and the associates and their concerns had advanced a sum of Rs, 59,14,739, as short term loan, excluding a sum of Rs, 30, lakhs, which was advanced directly to the Company by the standard Bank Ltd. The petitioner and his group were, in this manner, responsible for making arrangement for a sum of Rs, 3,39 crore for financing the company".

5. ' The petitioner and his mother, Mst. Shamim Khatoon, had also obtained a personal loan of Rs, 90 lakhs from the Directorate under a loan agreement dated 21-1-1970, which provided for payment of interest at the rate of 6 per cent per annum to the Directorate, from the date of the advance until the going into commercial production of the Mill, whereafter the rate of interest was to be paid at 10 per cent per annum till the entire loan was paid off. Additionally the Directorate was entitled to 5% in the net profits of the Company. The said loan was secured by means of a bank guarantee which provided for the pledging of fully paid-up shares of the Company of the value of Rs, one Crore, on the basis of the above facts it is asserted that the petitioner and his group had, with such fitness and their efforts, established the Sugar Mill in question at Khoski, District Badin. The Mill had successfully gone into production and within the short period ending 30th September, 1972. Made a net profit of Rs, 1,14,83,652, which finds support from the audited balance-sheet of the Company brought on the record by the petitioner.

3. The respondent No, 2 has filed an elaborate counter affidavit in reply to the petition, and the same has been adopted by the first respondent. According to the facts stated therein, the Chairman, Agricultural Development Corporation bad visited Tando Bago on 23-1-1968, when certain Army settlers of the area prevailed upon him to set up a sugar Mill in their cane growing area. The Chairman, in turn, requested the Adjutant General to persuade the Fauji Foundation (the respondent No, 2 herein) to set up the required Sugar Factory at Khoski. The Adjutant General, however, informed him that Fauji Foundation was unable to handle the project as it stood fully committed to the establishment of a petro Chemical Complex at Karachi. The matter was then take up by the G. H. Q. With the Government of West Pakistan which was asked to arrange for a suitable party for doing the needful. It is averred that it was on account of the efforts of ,the then Chief of the Army Staff that the Provincial Government proposed the name of Mr. Inamur Rehman, and he was then granted permission for setting up of the Sugar Mill at Khoski.Lt is alleged that the land for the mill was also acquired with the assistance of the G. H. Q. And the PICIC was given an undertaking that the Director, Welfare and Rehabilitation, who also happened to be a Director of the Company, will advance a loan to the Company to the tune of Rs, 50, lacs in order to meet the local cost of the project. The Director, Welfare and Rehabilitation, also gave an undertaking to the PICIC that the shares worth Rs, 50, lacs will be subscribed by the G. H. Q. On public issue, subject to the consent of the Controller of Capital issues. The PICIC was also assured that the Director, Welfare and Rehabilitation, will subscribe fully to the shares which were intended to be issued to the Cane growers of the area, in case the same were not subscribed them. It is alleged that apart from the investment made to the tune of Rs, 1.55 Crore the G. H. Q. Had thus entered into firm, written and binding commitments to render financial assistance to the extent of Rs, 110 lacs as mentioned above which would have aggregated to the total involement of Rs, 2,65 Crores.

6. ' The aforesaid sweeping allegations have been denied by the petitioner and it is asserted that major financial arrangement had been made by the Rehmania Group in the manner first above- mentioned.

7. ' The Counter affidavit goes on to say that the promoters of the Company were shown undue favour by the then Adjutant General, Major General Khudadad Khan, in connection with the advancement of the loans from the welfare funds of the Army. The said General was allegedly removed and a probe was ordered into the affairs of the welfare funds, when startling facts, of which no particulars are given, relating to the misappropriation of the said funds were brought to light.

8. ' It is stated that it was in the wake of such probe that the whole case was presented to the.President during the course of a meeting held on 23-12-1971, when significantly enough the Managing Director of the Fauji Foundation was also present.

9. ' Three proposals were put up for consideration in the said meeting and, it is stated, that the President decided in favour of the last proposal: that the Rehmania Fauji Sugar Mills be wound up as a limited company and sold and transfserred on reasonable terms to Fauji Foundation as a going concern. The Martial Law Regulation 103, in the circumstances, was promulgated incorporating the said decision.

10. ' As the Regulation was self-operative and came into effect immediately, the Company, Rehmania Sugar Mills Ltd., was forthwith dissolved, and transferred to respondent No, 2 with all its rights, properties, assets, debts, liabilities and obligations. The terms and conditions of transfer were later determined by an order issued as Notification No, 22 of 1972, dated 20th April, 1972, which was published in the Gazette of Pakistan, Extraordinary, of 22-4-1972.

4. The petitioner has challenged the Regulation and the Order issued thereunder on several grounds: the frontal attack being that the said instruments were conceived in bad faith and are mala fide pieces of purported legislation. The other grounds of attack are: that the Regulation cannot pass muster as law or a valid piece of legislation, and it was a mere executive fiat reflecting the will of the individual; that no law sequestrating the proprietary rights of an individual could be passed by the Federal Government, much less by a person wielding the power of the State falling into his hands, in the exercise of the power of 'eminent domain' except for 'public purpose' or in the 'public interest'; and lastly, the provisions contained in the Regulation amounted to entrenchment on the field of judiciary.

11. ' The order issued under the Regulation has also been challenged on similar and certain other grounds which will be discussed later.

5. Before examining the contentions on merits, it is necessary to first dispose of the objection raised on behalf of the respondents with regard to the manner in which the plea of mala fide has come to be pleaded in the amended petition.

12. ' It was contended that the petitioner having earlier pleaded male fide in the petition, as filed originally, was not to be raise the plea of another kind of mala fide, as was done in petition.

13. ' In support of the objection the learned counsel relied upon the following passage from the judgment of the Supreme Court in Federation of Pakistan v. Saeed Ahmed Khan (I) at p. 170 : "Male fide is one of the most difficult things to prove and the onus is entirely upon the person alleging male fide to establish it, because, there is, to start with a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of male fide. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begun Agha Abdul Karim Shorish Kaskmiri, mala fide must be pleaded with particularity, and once one kind of male fide is alleged, no one should be allowed to adduce proof of any other kind of male fide nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fide be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."

14. ' The above-mentioned observations are to be appreciated in the context the same were made.

15. The Supreme Court had earlier, in the case of Abdul Baqi Baloch (2), observed that under a constitutional system, which provides for a judicial review of a executive actions, it was fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the Executive Authority. Thereafter, while considering the scope of enquiry into the allegations of ma/a fide the following observations were made in Begun Agha Shorish Kashmiri's case (3) : "It is not to be turned into a roving enquiry permitting the detenu to bunt for some ground to support his ease of male fide nor should an enquiry be launched upon merely on the basis of vague and indefinite allegations. Male fide must be pleaded with particularity and once one kind of male fide is alleged, the detenu should not be allowed to adduce proof of any other kind of mala fide."

16. ' It would thus appear that the above rule, consistently laid down by the Supreme Court relates to the power of the Court to make enquiry into the allegations of male fide within the ambit of its Constitutional Jurisdictio and it does not bar the right of any party to amend the pleadings.

17. ' The objection also ignores the fact that the petition has since then been amended, pursuant to the order dated 28-2-1978 passed on the petitioner's Application under Order VI, rule 17, C. P. C.

18. ' It is undeniable that amendment can be applied for under Order VI rule 17, C. P. C. At any stage of the proceedings and such right cannot curtailed. The power to permit amendment is discretionary with the Court within the limits of judicial principles. The amendment is to be allow where the applicant had acted in good faith, but refused where it w mala fide. Amendment is not allowed where the effect would be to change t very character of the petition or result in the substitution of the case

(1) PLD 1974 SC 151 (2)PLD 1968 SC 313 (3)PLD 1969SC 14 of action. The power to grant amendment, being procedural, is to be u for the purpose of furthering the ends of justice. If found just and necessary, the Court may not hesitate in even allowing alternate and inconsistent pleas by way of amendment.

19. ' No doubt the order allowing the petitioner's application for amendment was passed "subject to all just exceptions", but it cannot be taken to' mean that the order itself can be reviewed. All that is meant by the use of such words is that the allegations in the application for amendment, and the facts sought to be pleaded, are not to be taken as having been accepted by the, other side, who remains at liberty to challenge the same the other objection raised on behalf of the respondents was that the application for amendment was filed belatedly after the lapse of about 4* years. This objection has no force because the petitioner has a continuing cause of action by virtue of the impugned order issued under the Regulation. D The paragraph 2 thereof provides that nothing contained therein shall preclude the Fauji Foundation from taking action for recovery of moneys of the Company' misapplied, lost or misappropriated, against any Director, Managing Agents, Officers or any person responsible for such misapplication, loss or misappropriation. Besides the contravention of the provisions of the Regulation or any order made thereunder is made punishable with rigorous imprisonment of a term which may extend to one year or with fine or with both. According to these provisions, which are potent and of far-reaching consequences, the petitioner, as Director of the Rehmania Sugar Mills and the Management Company, was and continues to be under constant threat of accountability. It was pointed out by the learned counsel for the petitioner that the Fauji Foundation had already filed a Suit No, 1974, in this Court for the recovery of Rs, 95,280, against the petitioner, which is pending, and the petitioner may well be apprehensive of such or similar actions, as the Fauji Foundation continues to enjoy the, right of taking action against the petitioner on the basis of the above-mentioned provisions.

20. ' It may further be mentioned that the main respondent No, 1 did not choose to file any counter- Affidavit against the petitioner's application for amendment. In the counter-Affidavit filed on behalf of the respondent 2, the facts stated by the petitioner in his supporting affidavit to the application, were met by a general denial. The explanation furnished by the petitioner for not having applied for amendment earlier, as given in the affidavit, was that at the time of the institution of the petition and until July, 1977, he could not muster courage to bring any allegation against the then President and the Chief Martial Law Administrator of Pakistan. It was averred that his father, Inamur Rehman, was placed under house arrest by Mr. Z. A. Bhutto within three days of his assumption of power, and since then, the petitioner's family had remained the victim of various recriminatory actions taken against them during his regime. The learned counsel for the petitioner further sought to place reliance on some allegations regarding punitive measures resorted to against certain persons during the former regime, as have been disclosed in the White Papers issued by the Government. It 'was contended by him that in any case the present Government was bound by its statements contained in the White Papers and was estopped from raising any objection with regard to the nature of mala fide pleaded by the petitioner. It is, however, not necessary to be drawn into any controversial issue as, in my opinion, the order of amendment, which was passed by another learned Division Bench of this Court, does not case for Review and the circumstances justified the passing of such Order.

21. ' In the circumstances, the objections raised on behalf of the -respondents have no force and the allegation of mala fide, as pleaded in the amended ,petition, requires examination on merits.

6. As the challenge in his petition is to the Martial Law Regulation and the order issued thereunder by the then President and the Chief Martial Law Administrator, it is first to be seen whether the jurisdiction of this Court to examine the validity of the same is in any manner barred by virtue of the provisions contained in Article 281(1) of the Interim Constitution. Article 281(1) is as under :- "281.-(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the Twenty-fifth day of March, 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.'

22. ' The provision, by way of above Article, was made in the interim Constitution in the aftermath of the pronouncement of the historical judgment in Asma Jilani's case (I), declaring Agha General Muhammad Yahya Khan as an usurper and the finding that the proclamation of Martial Law on the 25th March, 1969, by him, was entirely illegal and all Martial Law Regulations, Martial Law Orders and other legislative instruments issued by him were, on this ground alone, void initio and were of no legal effect. The Supreme Court foresaw the difficulty which would have arisen as a result of such declaration and, therefore, found it expedient and necessary to take recourse to the application of the doctrine of necessity because, ignoring of the same was likely to result in disastrous consequences to the body politic, upsetting the social order itself.' The said doctrine, it was held, could be invoked in aid only after the Court had come to the conclusion that the acts of the usurper were illegal and illegitimate because then alone the question could arise as to how many acts, legislative or otherwise, called for condonation or maintenance notwithstanding their illegality in the wider public interest. This, the then learned Chief Justice called the principle of 'Condonation' and not "legitimization' The test of condonation was laid down as under:-

(I) all transactions which are past and closed, for no useful purpose can be served by re-opening them, (2) all acts and legislative measures which are in accordance with, or could have been made under the abrogated Constitution or the previous legal order, i3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, the objectives mentioned in the Objective Resolution of 1954."

23. ' Lastly, it was held that such acts which would seriously impair the rights of the citizens, except in so far they may be designed to advance the social welfare and national solidarity, could not be condoned.

24. ' The judgment in Asma Jilani's case was announced on 20th April, 1972, and the new Parliament met on the following day for approving the Interim Constitution and it peremptorily proceeded to take remedial measures for avoiding the unprecedented consequences arising out of the said decision, by incorporating Article 281 in the interim Constitution. In doing so the Parliament accepted the declaration of the Supreme Court with regard to the illegitimacy of Yahya Khan's rule and the futility of the laws passed by him.

(1) PLD 1972 SC 139

8. The Article 281 was examined by the Supreme Court in State v. Ziaur-Rehman (1), and the following interpretation was given to clause (2) thereof:- "That the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide."

25. ' It was contended by the learned counsel for the petitioner that the discussion in the above judgment was confined to the provisions contained in clause (2) of Article 281 of the Interim Constitution alone whereas, according to the learned counsel for the respondents, the judgment was also conclusive with regard to the interpretation of clause (1) of Article 281 as well. The judgment in the circumstances needs closer study, which I hereby venture to undertake. The Article 281 (1) makes no distinction between the Martial Law Regulations and the Martial Law Orders and the other laws passed by General Muhammad Yabya Khan and late Mr. Zulfiqar Ali Bhutto. The reason is too obvious to be ignored. The power was transferred by General Yahya Kban, on his stepping down from the office on 20th December, 1971, to late Mr. Zulfiqar All Bhutto under his Presidential Proclamation dated 20th December, 1971 which is to the following effect :- "Whereas by the Proclamation of 25th March, 1969, I, General Agha Mahammad Yahya Khan, H. Pk., J. J., declared that the whole of Pakistan shall be under Martial Law and also assumed the powers of Chief Martial Law Administrator and the command of all the Armed Forces of Pakistan ; ' And whereas I have decided to relinquish the office of Chief Martial Law Administrator and the command of all the Armed Forces of Pakistan. And whereas it is necessary that Mr. Zulfikar All Bhutto should assume the powers of the Chief Martial Law Administrator and the Command of all the Armed Forces of Pakistan ; ' Now, therefore, I hereby declare that said Mr. Zulfikar Ali Bhutto shall be the Chief Martial Law Administrator and shall command all the Armed Forces of Pakistan and shall also be the President of Pakistan."

26. ' As General Yahya Khan was himself an usurper, the transfer of power by him to his successor could not be blessed by him with any purity and the power which had fallen from his tainted hands remained no less tainted in the hands of the recipient of such power. Mr. Zulfiquar All Bhutto became the first Civil Martial Law Administrator in the history of Pakistan by virtue of the above- mentioned Proclamation issued by General Yahya Khan and, in the circumstances, all Martial Law Regulations, Martial Law Orders and other Legislative instruments promulgated and issued by him in the exercise of such authority suffered from the same infirmity which attached to the exercise of power by General Yahya Khan himself. It was, therefore, natural that the Martial Law Regulations and Martial Law Orders and the laws passed by General Yahya Khan and his successor Mr. Zulfikar All Bhutto were treated at par in clause (1) of Article 281 of the Interim Constitution. This is pointed, out because the impugned Regulation and the Order were issued by Mr. Z. A. Bhutto in his above- mentioned capacity.

(1) PLD 1973 SC 49 ' The official version given by the then learned Attorney-General to the Supreme Court in Ziaur- Rehman's case, regarding the object of incorporating Article 281 in the Interim Constitution, has important bearing on the point in issue. It appears at page 78 of the report and is as under :- "The learned Attorney-General points out that because this Court had in Asma Jilani's case declared General Muhammad Yahya Khan to be an usurper, all legislative measures promulgated by him became void ab initio and could be validated by the Courts, the National Assembly wanted to remove this difficulty as a number of important measures had been introduced in the interest of restoring a democratic government by the chosen representatives of the people, maintaining the integrity of the country and for bringing about social and economic reforms. Confusion and uncertainty could not be allowed to prevail. This Court had decided that the Courts would only be in a position to ,condone, on the basis of the doctrine of necessity, some of these acts, legislative or otherwise, but such condonation would necessarily entail bringing up of specific cases before the Courts according to their established procedure, and this would have taken a great deal of time.

27. Hence, since the only authority which could validate the laws was the Constitution making body. It decided firstly to give a blanket validation to all such legislative measures, "notwithstanding any judgment of any Court" and also provided that such measures shall not be "called in question in any Court" on the ground that they had not been validly made by a competent authority."

28. ' Mr. Muhammad Ali Sayeed, learned counsel for the petitioner, contended that Article 281 of the interim Constitution was designed to remove the taint attaching to the Martial Law Regulations, Martial Law Orders and other laws passed by General Yahya Khan, only to the extent of curing the defect as to his incompetence of making the same and the Article was not intended, nor could be interpreted, to lay down that laws passed by him stood also validated. In this connection he referred to the following paragraph from the Judgment of the Lahore High Court in relation to the interpretation of Article 281 (1) in Saeed Ahmed v. Federation of Pakistan (1):- " there is a vast difference in the text and the terminology of both these clauses and to give a short answer, in clause (1), competency of the authority who may have made various laws is validated. while in clause (2) validation is to be conferred only if the orders made, proceedings taken and acts done are in exercise or purported exercise of powers drived from any relevant law. In other words in clause (1) the source of the competency of the law maker is not to be gone into or traced, while in clause (2) that exercise has to be done and the fictional validity cannot come into existence unless the orders made, proceedings taken and acts done are traced, to the exercise or purported exercise of a power derived from the relevant law."

29. ' The learned counsel further stated that the language used in the Article also did not warrant the interpretation that the laws passed during the relevant period had also been validated. He referred to the language used in section 4 of the Validation of Laws Act, 1956 whereby certain laws were specifically declared to be valid.

(1) PLD 1974 Lab. 18 ' The said subsection is reproduced hereunder 4. Declaration of validity : ' The Laws set out in column (I) of the Schedule to this Act are hereby declared to be valid and shall be deemed to have had the force and effect of law on and from the dates mentioned in column

(2) of the Schedule .

30. ' In my humble opinion the following two paragraphs, which stand in close sequence at pages 81- 82 of the report, from the opinion of Hamoodur Rehman, C. J., who delivered the leading judgment in Zlaur Rehman's case, when read together with the above statement of the learned Attorney- General sufficiently bring out the true purport and meaning assigned by the Supreme Court to clause (I) of Article 281 : "This is the task which I now propose to undertake and it becomes necessary, for this purpose, to examine the provisions of Article 281 of the Interim Constitution with greater care in order to understand as to "what exactly it seeks to achieve and to what extent the words used in this Article have ousted the jurisdiction of the Courts and in respect of what matters.

31. ' As I read the provisions of Articles 281, it seems to me that it was designed to achieve a three fold purpose. The first clause thereof was intended to give blanket validation to all legislative measures enacted on and from the 25th day of March, 1969, when General ,Yahya Khan usurped power, to the 21st of April, 1972 when the Interim Constitution came into force. This clause not only validates all such measures but also nullifies the effect of the judgment of this Court in Asma Jilani's case by using the words "notwithstanding any judgment of any Court" and further completely ousts the jurisdiction of the Court to question either the validity of these measures or the competence of the authorities enacting them. As a result of this clause, it is no longer possible for any Court to declare any legislative measure enacted or promulgated between the 25th day of March, 1969 to the 21st of April. 1972, to be void or invalid, on account of it having been made or enacted by a person or authority having no power to do so."

32. ' The learned counsel for the petitioner contended that according to the penultimate sentence occurring in the above paragraph, clause (1) of Article 281 had clearly been interpreted to mean that the bar created therein related to the legislative measures, enacted or promulgated during the specified period from being called in question only in so far the competence of the authority making the same was concerned. However, it is not possible to merely rely upon the observation contained in the above mentioned solitary sentence as the reading of the paragraph, as a whole, shows that the Supreme Court also spoke about Article 281(1) as giving blanket validation to all legislative measures enacted on and from 21st day of March, 1969 to 21st July, 1972.

33. ' Mr. Sayced A. Shaikh, learned counsel for the respondent No, 3 referred to the following paragraph at paper 83 of the report to point out that the view therein recorded actually clinched the issue : "The result, therefore, that has, in my view, been achieved by Article 281 is that the legislative measures themselves have been validated and Courts have been debarred from questioning their validity. Similarly, persons or authorities acting in - the exercise of or the purported exercise of powers given by these measures have been protected from legal proceedings, but the acts done, proceedings taken or orders made in the exercise or purported exercise of powers derived from those measures have only been validated without ousting the jurisdiction of the Courts."

34. ' The above findings are indeed too clear to call for any further comment and support the contention of the learned counsel for the respondent.

35. ' The study of the judgment, however, is not yet complete because immediately after the paragraph last quoted above, it has been held by the Supreme Court that even the blanket validation given by clause 1 to the legislative measures enacted during the relevant period, was only of a formal nature, because, the said clause was to be read along with clauses (2) and (3) of Article 280. It was then observed 'that even though the legislative measures enacted during the period beginning from 25-3-1969 had been validated, clause 2 of Article 280 had actually revoked the proclamation of the 25th of March 1969, itself and all orders specified in the Sixth Schedule to the Interim Constitution including all Orders amending those Orders. Similarly, under clause (3) of Article 280 all Martial Law Regulations and Martial Law Orders, except those specified in the 7th Schedule to the interim Constitution, had been repealed and even those which were saved were kept alive merely as Acts of the appropriate Legislatures and were to take effect as such. It has then been laid down as under :- "Therefore, notwithsianding the blanket validation given by clause (1) of Article 281, the net result, if the provisions of this clause are read together with the provisions of clause (2) and (3) of Article 280, is that the proclamation of the 25th March 1969, under which General Yahya Khan assumed powers, and the orders specified in the Sixth Schedule stand repealed and all Martial Law Orders and Regulations are repealed except the few Specified in the Seventh Schedule. Even those so preserved are to take effect only as sub-constitutional legislative measures and not as supra- Constitutional measures."

36. ' The conclusion reached as a result of the above discussion is recorded in the following paragraph of the judgment which appears at page 85 : "Reading these provisions together, as we are entitled to do, for, the Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution, the net result of clause (1) of Article 281 is merely to bring about a notional validation, for, immediately clause (1) of Article 281 came into effect, clauses (2) and (3) of Article 280 also became operative simultaneously. As a result thereof, in respect of the Martial Law Regulations and Martial Law Orders repealed by ,Article 280(3), the provisions of Article 295 became attracted, and even the few Martial Law Regulations and Martial Law Orders, specified in the Seventh Schedule, which are to continue, have to be treated as and. To have effect as sub-constitutional legislative measures which will be open to the judicial scrutiny of the Courts, for, their validity will always be open to scrutiny and capable of being tested on the basis of the provisions of the Constitution itself, the Supreme Organic Law."

37. ' In the light of the above-mentioned clear findings the question pertinently arises as to whether the repealed legislative instruments enjoy greater protection in comparison to those which are saved and are henceforth to be simply treated as Acts of the appropriate Legislatures and are thus open to the judicial scrutiny of the Courts and their validity could always be tested on the basis of the provisions of the Constitution itself. In the circumstances, if it is held that the validity of the repealed instruments is no longer open to judicial scrutiny on any ground whatsoever then, indeed, it will have to be held a fortiori that the legislative instruments which are kept alive, as Acts of appropriate Legislatures are weaker instruments and those which have been consciously repealed are immutable, sacrosanct and perfect pieces of legislation although the same may be suffering from any inherent infirmities of such serious nature as could not be countenanced by any superior Court of the country. In my humble opinion it cannot be held so. Accordingly it follows that as the Martial Law Regulation 103 and the Order issued thereunder do not find place in the Seventh Schedule to the Interim Constitution, their validity, in my humble opinion, is open to judicial scrutiny on the basis of the tests of condonation enunciated in Asma Jilani's case.

38. ' The Supreme Court in Ziaur Rehman's case was not called upon to pronounce judgment as to whether the allegation of mala fide was inadmissible in relation to legislative instruments. The proposition of law whether the plea of mala fide could or could not be gone into, in relation to legislative instrument, was therefore, not overruled. If, therefore, it can be successfully demonstrated that a legislative instrument was conceived in bad faith an enacted mala fide or for any collateral purpose there seems no reason for holding that such an instrument could not be declared void. The question, can further be examined from another stand-point ; that what is void doe not exist in the eye of the law, and what does not exist could not have been validated by the Parliament as a Constituent body. Admittedly the Parlia ment when approving the Article 281 had no occasion to examine each and every instrument passed by General Yahya Khan or Mr. Z. A Bhutto and it cannot be imputed with the motive of perpetrating manifest injustice by validating void legislative measures or such legislative instruments as were conceived in bad faith and were passed `mala fide' or otherwise were such as could not have been passed competently by any Legislature itself. For instance if General Yahya Khan had passed a Regulation saying that all blue- eyed babies were to be killed, or that he and his family were exempt from the operation of the fiscal and punitive laws of the country during their life time, can it be urged, much less argued with any success, that such legislative instruments were also to enjoy blanket validation. Such question obviously must be answered in the negative.

39. ' It may be mentioned that Article 281(2) of the Interim Constitution was amended on 3rd April 1973, by President's Order No, 3 of 1973 so. That (a) after the words "be deemed" the commas and words, "notwithstanding any judgment of any Court", shall be inserted and shall be deemed always to have been so inserted ; and (b) after the word "done" at the end, the words "and shall not be called in question in any Court" shall be inserted and shall be deemed always to have been so inserted.

40. The foregoing amendment did not affect clause (1) of Article 281 of the Interim Constitution. The Supreme Court had the occasion to examine the effect of the above-mentioned amendment made in clause (2) of Article 281 in Federation of Pakistan v. Saeed Ahmed (1) and it was held that the amendment, so made, did not make any material difference to the interpretation of the said Article as given in Ziaur Rehman's case.

41. ' It was contended by the learned counsel for the respondents that the validity of the Martial Law Regulations, Martial Law Orders and all other laws made between the 20th day of December 1971, and the 20th day of (1) PLD 1964. SC 151 April 1972, (both days inclusive), could not be now challenged on account of the use of the words "on any ground whatsoever" occurring at the end of clauses (1) and (2) of Article 269 of the 1973 Constitution. However, this argument has no force in.

42. View of the interpretation given to the said words by the Supreme Court in Saeed Ahmad's case as referred to earlier.

7. It was contended by the learned counsel for the respondents that mala fide could not be pleaded against the Legistature and the legislative instruments, nor the question of malice or motive of the Legislature could be enquired into by the Court.

43. ' Mr. Saeed A. Shaikh, learned counsel for the second respondent, referred to the following dissenting opinion of Muhammad Yaqub Ali, J. In Qassem-ud-Din v. The Province of West Pakistan

(1) :- "The principle on which the Courts are debarred from sitting in Judgment on the Legislature, therefore, is not that it is not possible or it is extremely difficult to prove that its members had acted mala fide, or that a fraud was played upon them, or that they had made a mistake, but that Courts being themselves creatures of law must give effect to the laws of the country irrespective of the considerations of jurisprudence or of policy and that intra vires or ultra vires of an Act or an Ordinance depend simply on examining the competence of the legislative authority which enacts them and by no other criterion."

44. ' The learned counsel then referred to the discussion on the subject of the motive of the Legislature from Corpus Juris Secundum (Vol. 16, page 809) and read the following passage : ' It is a well-settled rule that in determining the validity of an enactment, the judiciary will not enquire into the motives or reasons of the Legislature or of the members thereof. This rule is even carried to the extent of excluding consideration of duress, fraud, or corruption in the passage of the act, and has been applied to legislation regarding administrative reorganization, appropriation and expenditure of public funds, banks and banking, building and loan associations, communications, corporations, counties, criminal procedure, labour and employment, public improvements, schools and school districts, searches and seizures, taxation, warehousemen, and zoning.

45. ' He then referred to the following passage from Willoughby's Book on, the Constitution of the United States, Volume 1, Second Edition : "With the motives of the legislators the Courts do not concern themselves. The Judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that inquiry without intrenching upon the domain of another Department of government. That it may not do with safety to our institutions."

46. ' The learned counsel then referred to some decisions which are referred to hereunder :- ' In the case of LEO M. Mc. CRAY v. United States (2) at page 94, it was held as under :- "Whilst, as a result of our written Constitution, it is axiomatic that the judicial Department of the Government is charged with the solemn duty

(1) PLD 1959 Lah. 113 (2) 195 U S 78 of enforcing the Constitution, and therefore, in cases properly presented, of determining whether a given manifestation of authority has exceeded the power conferred by that instrument, no instance is afforded from the foundation of the Government where an act which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust. To announce such a principle would amount to declaring that, in our constitutional system, the judiciary was not only charged with the duty of upholding the Constitution but also with the responsibility of cotracting every possible abuse arising from the exercise by the other Department of their conceded authority. So to hold would be to overthrow the entire distinction between the legislative, judicial, and executive department of the Government, upon which our system is founded, and would be a mere act of judicial usurpation."

47. ' In Charles E. Smith v. Kansas City Title and Trust Co. (1), at p. 589 it was held as under :- "But, it is urged, the attempt to create these Federal agencies, and to make these banks fiscal agents and public depositaries of the Government, is but a pretext. But nothing is better settled by the decisions of this Court than that, when Congress acts within the limits of its constitutional authority, it is not the province of the judicial branch of the Government to question its motives."

48. ' In the case of John M. Daniel v. Family Security Life Insurance Company (2) the U. S. Supreme Court held that' the motive for legislation is without bearing on the question of its constitutionality." Again in the case of Intere state Commerce Commission v. W. G. Brimson (3), at p. 1056 it was held as under :- "It is a settled principle of Constitutional law that the Government which has a right to do and act, and has imposed on it the duty of performing that act, must according to the dictates of reasons, be allowed to select the means, and those who contend that it may not select any appropriate means, that one particular mode of effecting the objects is excepted, take upon themselves the burden of establishing that exception. The test of the power of Congress is not the judgment of the Courts that particular means are not the best that could have been employed to effect the end contemplated by the legislative Department. The judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that inquiry without entrenching upon the domain of another Department of the Government. That it may not do with safety to our institutions."

49. ' Coming to the Pakistan decision Mr. Sayed A. Shaikh, then referred to Punjab Province v. Malik Khizar Hayat Khan Towana (4) where it was held that "it was not for the Courts to question the motive or policy of the Legislature or to refuse to give effect to legislation merely because it appears harsh or unreasonable or vindictive. The plain duty of Courts is to ascertain the intention of the Legislature and to carry it out irrespective of the consequences that may ensue to a particular party." In State v. Ziaur Rehman (5), at p. 70 it was held as under :--

(1) 255 U S 577 (2) 366 U S 220

(3) 154 U S 1047 (4) PLD 1956 P C 200

(5) PLD 1973 SC 49 "On the other hand it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has been competently and validly made the judiciary cannot refuse to enforce it even if the result of it be to nullify its own decision. The Legislature has also every right to change, amend or clarify the law if the judiciary has found that the language used by the Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which established a particular Court, may also, if it so desires, abolish it."

50. ' All the above-mentioned decisions relied upon by the learned counsel relate to legislative instruments passed by elected body of Legislatures and, in the circumstances, have no relevance to the question involved in the petition. The laws are invariably made in the United Kingdom and the United States of America by the Parliaments and even the regulations which the Monarch is empowered to issue are based on the advice of the Cabinet. Nonetheless the passages underlined in the quotations from various judgments, reproduced hereinabove, bring out the salient principles enunciated in the said decisions.

51. ' Mr. Mohammad Ali Sayeed, learned counsel for the petitioner on the other hand raised a distinction by contending that while it may be difficult to prove the allegation of mak fide against a collective body of Legislatures, the said principle was inapplicable to a case where the legislative instrument was made by an individual in the exercise of the mandate conferred by law upon him or by reference to the power which he may have successfully been able to arrogate to himself as a law making force. It was contended that in the former case the reponsibility of passing the legislative instrument was shared collectively by a large number of individuals while in the case of the latter there existed no such conceptual or practical difficulty. According to him in the case of legislation by an individual, the person responsible for it was not immune from human failings, infirmities and susceptibilities and it could not be held, as a rigid rule, that whatever was enacted by such an individual in the garb of a legislative instrument was sacrosanct and beyond any reproach.

52. ' Mr. Mohammad Ali Sayeed in this connection, relied upon the view expressed by Kaikaus, J. In Qasem-ud-Din v. Province of West Pakistan (1) as referred to the following passages at page 94 of the report :- "The true reason why the motives of the Legislature cannot be questioned is the impossibility of an inquiry into the motives of the large number of legislators and the chaos which would be created if evidence were allowed to be led as to such motives. If evidence was led as to motives of the legislators, there would be an interminable inquiry with respect to the validity of every Act and it is obvious that the inquiry would be a most unsatisfactory method of ascertaining the truth.

53. ' Mr. Justice Field has said that we can, as regards motives, rely upon what appears on the face of the enactment. This would mean that an act of the Legislature, if without doubt it was not intended to fulfil the purpose for which legislative power was granted, would not

(1) PLD 1959 Lah. 76 be valid, and the reason for refusing to allow an inquiry is based not on the doctrine that a mala fide enactment would be valid but that the inquiry is not practically possible.

54. ' If an enactment stated in the preamble that the brother of the Chief Minister had been hauled up for murder and for that reason it was necessary to reduce the punishment for murder to one year, or if the enactment was an Act of treason or sabotage directing the blowing up of an arsenal or the disbanding of an army in time of war, it would, according to this view, be void. I do not say it is not possible to take a contrary view, and, therefore, I will consider what would be the effect if we hold that motives of the Legislature are not liable to be questioned at all. The strongest position would be that when the power to legislate is granted, it includes the power to legislate mala fide for any selfish, improper and even treasonable motive. Still this would hardly affect the question before us.

55. It is one thing to say that legislative power when it in fact exists includes the power to enact mala fide and an entirely different thing to say that a legislative power which is to come into existence only when a condition precedent is satisfied can come into existence even without that condition precedent being satisfied. What. I am discussing is not whether when the Legislature has power to act, it can act mala fide, but whether a person who is entitled under some circumstances to legislate has acquired the power to legislate at all."

56. ' In dealing with the question as to whether the Courts could go into the motives of the person who promulgated the Ordinance, reference was made by Kaikaus, J. To the case of Emperor v. Benoare Lal (1) where it was held by the Privy Council that an Ordinance could be attacked on the ground of mala fide, and the question whether the Governor was satisfied as to the existence of an emergency could be gone into by the Courts. The Ordinance challenged in the said case was the Special Criminal Courts Ordinance II of 1942 which was promulgated by the Governor-General in the exercise of the power conferred upon him by paragraph 72 of the IXth Schedule to the Government of India Act which provided that the Governor General may, in cases of emergency, make and promulgate Ordinances for the peace and good Government of British India or any part thereof, and any Ordinance so made, for the space of not more than six months from its promulgation, was to have the like force of law and Act passed by the Indian Legislature. The vires of the said Ordinance had been challenged on two-fold grounds, namely, (1) an emergency did not exist, and (ii) that although the preamble of the Ordinance stated that an emergency existed, the Governor-General did not in fact hold the opinion that an emergency existed and was only providing for an emergency that may in future arise. The Ordinance was declared ultra vires by the Calcutta High Court and the Federal Court of India, and, in the circumstances, the Government of India took up the matter Appeal to the Judicial Committee. At the same time, the Governor- General promulgated another Ordinance, in place of the impugned Ordinance, with the result that at the time of the hearing of the Appeal by the Privy Council, the question of validity of the Ordinance was more or less left of academic interest only. Nonetheless, the question was dealt with exhaustively by the Privy Council, and while dealing with

(1) AIR 1945 P C 48 the attack on the Ordinance on the ground that no emergency existed, their Lordships said, after reproducing paragraph 72 as under : "It is to be observed that the paragraph does not require the Governor-General to state that there is any emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming *at he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists. In the present instance, such questions are immaterial, for at the date of the Ordinance (2nd January, 1942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7th December; Rangoon had been bombed by the enemy on 23rd December and again on 25th December; earlier Ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and -so forth."

57. ' After quoting the above paragraph Kaikaus, J. Observed as under:- "Their Lordships have stated that it is only when he acts bona fide that the Courts cannot challenge the view of the Governor-General that an emergency existed. The words used by their Lordships clearly mean that if he does not act bona fide, his action is liable to challenge in Courts.

58. ' Finally, the learned Judge expressed his opinion at page 101 of the report as under :- "I would hold that the general rule as to the motives of the Legislature not being liable to be enquired into has no application to the case of an Ordinance."

59. ' M. Yaqub Ali, J. Dissented with the above opinion of Kaikaus, J. And held that he was unable to agree with his conclusions that Courts could sit in judgment on an Ordinance promulgated by the Governor of a Province under Article 102 of the Constitution, and declare it illegal on the ground of mala fide. Later, M. Yaqub Ali, J. Himself changed his view, which was eloquently expressed by him in Asma Jilani's case at page 235 of the report as under: "The preponderant view appears to be that law is not the will of a sovereign. Law is a body of principles called rules or norms recognized and applied by the State in the administration of justice as rules recognised and acted upon by the Courts of Justice. It must have the contents, and forms of law. It should contain one or more elements on which the different theories of law are based, and give expression to the will of the people whose conduct and behaviour the law is going to regulate.

60. The will of the people is nowadays often expressed through the medium of Legislature comprising of the chosen representatives of the people. The will of a single man, howsoever laudable or sordid, is a behest or a command, but is certainly not law as understood in the jurisdic sense."

61. ' In the Indian case popularly known as the Privy Purses case (1) the question of mala fide was raised in relation to legislative instruments issued by the President of India in the form of Orders dated 6th September, 1970 in

(1) AIR 1971 SC 320 respect of each of the Rulers of the former Indian States. The said orders were passed by the president of India in exercise of the powers vested in him under Article 366 (22) of the Constitution of India. All the orders were notified together in the Gazette of India, and they resulted in the peremptory stoppage of the Privy Purses received by the Rulers and the discontinuance of their personal privilege. The said Presidential Orders were challenged by some of the Rulers by filing writ petitions under Article 32 of the Constitution of India. The Indian Supreme Court did not consider it necessary to go into the question of mala fide, but Hegde, J. Vide paragraph 271 of the judgment held as under :- "The impugned orders are also unconstitutional for the reason that the power conferred under Article 366(22) is exercised for a collateral purpose. As seen earlier, power to recognise Rulers was conferred for the purpose of implementing some of the provisions of the Constitution and not for denuding the contents of those provisions. We have earlier seen how the impugned orders came to be made. The Government of India sought to amend the Constitution by deleting Articles 291, 362 and Clause 22 of Article 366. But as the Bill seeking the amendment of the Constitution failed to get the required majority in the Rajya Sabha that attempt failed. Within hours after the said Bill was rejected, the cabinet met and advised the President to pass the impugned orders. This is clearly an attempt to do indirectly what the Government could not do directly. Such an exercise of power is impermissible under Article 366(22). Exercise of a constitutional power for collateral reasons has been considered by this Court in several decisions as a fraud on that power (See Balaji v. State of Mysore (1963) Suppl. IS C R 439=AIR 1963' SC 649). Breach of any of the constitutional provisions even if made to further a popular cause is bound to be a dangerous precedent. Disrespect to the Constitution is bound to be broadened from precedent to precedent and before long the entire Constitution may be treated with contempt and held up to ridicule. That is what happened to the Weimer Constitution. If the Constitution or any of its provisions have ceased to serve the needs of the people, ways must be found to change them but it is impermissible to by-pass the Constitution or its provisions. Every contravention of the letter or the spirit of the Constitution is bound to have chain reaction. For that reason also the impugned orders must be held to be ultra vires Article 366(22)."

62. ' It would thus appear that any exercise of power for collateral purposes, according to Hegde, J.

63. Could invalidate the law, but since the Rulers had not pleaded mala fide against the President of India, the case was not dealt with on that basis. Our own Supreme Court in Nusrat Bhutto's case, as per opinion of Muhammad Akram, J., was pleased to lay down that : "In our way of life we do not and cannot divorce morality from law. Therefore the pure Theory of law is not suited to the genesis of this State. It has no place in our body politics and is unacceptable to the judges charged with the administration of justice in this country."

64. ' As a result of the above discussion I am of the opinion that the consideration of the question of mala fide in respect of a legislative instrumently issued by an individual cannot be ruled out, provided it can be successfully! Shown that its author had acted mala fide and the instrument was designed to achieve a collateral purpose.

8. The questions which now call for examination are, (1) whether the Regulation qualifies to be treated as law or as a legislative instrument or, the same amounted to a mere executive fiat, and, (2): Whether, in terms, it constituted an encroachment on the field of judiciary.

65. ' The above questions will be taken up together for the facility of discussion.

66. ' In order to appreciate the arguments of the learned counsel for the petitioner in support of his above-noted contentions, it is necessary to refer to the impugned Regulation which is reproduced hereunder : REGULATION No, 103 Dissolution of Messrs Rehmania Fauji Sugar Mill Ltd.

67. Gazette of Pakistan, Extraordinary, 31st December 1971

1. This regulation shall come into force at once and shall have effect notwithstanding anything to the contrary contained in the Companies Act, 1913 (VII of 1913), or in any other law for the time being in force or in any other law, Memorandum or Articles of Association of the Rehmania Fauji Sugar Mill Ltd., hereinafter referred to as the Company.

2. The Company shall stand dissolved and all its rights, properties, assets, debts, liabilities and obligations shall stand transferred immediately to the Fauji Faundation. The President and Chief Martial Law Administrator may subsequently determine the terms and conditions of such transfer.

3. Every Director, Secretary or other officer of the Company shall make available to such person as may be appointed in this behalf by the Fauji Foundation all information, documents, books of account and other records relating to the Company.

4. Without prejudice to the other provisions of this Regulation, the President and Chief Martial Law Administrator may, in such manner as he may consider necessary or expedient, provide for the removal of difficulties arising out of or in connection with, the dissolution of the Company, or in effectively carrying out the purposes of this Regulation.

5. No provision of this Regulation, nor any action taken thereunder, shall be called in question by or before any Court or Authority including a High Court and the Supreme Court.

6. Whoever contravenes the provisions of this Regulation or any order made thereunder shall be punishable with rigorous imprisonment for a term which may extend to one year or with fine or with both.

68. ' The Regulation has no preamble and it does not claim to have been issued for any 'public purpose'. However, the object of issuing the Regulation has elaborately been explained in the Counter Affidavit filed by the Managing Director of the Fauji Foundation and the first respondent has stood by it. As earlier mentioned, the question of issuing the Regulation was mooted out in a meeting held in the President's Office on 23rd December, 1971, when, amount others, the Managing Director of the Fauji Foundation was, significantly, also present. To quote from the Counter-Affidavit, the following proposals were put up for consideration in the said meeting :- "(a) Shares of the company owned by Mr. Inamur Rehman and his family of the face value of Rs, 82 lacs and shares held by A. R. K. Industrial Management (Managing Agents of the Company) to the extent of Rs, 8 lacs be transferred and registered in the name of Director, Welfare and Rehabilitation, G. H. Q.;

(b) Debentrures of the value of Rs, 40 lacs be issued and registered in the name of Director, Welfare and Rehabilitation, G. H. Q. ; or (c)Rehmania Fauji Sugar Mills Ltd. Be wound up as a limited Company and all its assets and liabilities sold and transferred on reasonable terms to Fauji Foundation who shall then discharge all liabilities including the above and run the Mill as their proprietary concern."

69. ' The resultant action, taken in the said meeting, has been described in the same Counter-Affidavit in the following words :- "Since the Army's investments amounted to Rs, 1.55 Crore in this project against an issued and paid up capital of Rs, 1.25 lacs only, the President decided in favour of proposal at (c) above, because the Mill had Come into being with the Army's help and money, Fauji Foundation being a trust created entirely to serve the ex-servicemen was considered most suited and competent to take over and run this project for the benefit of Military settlers which was the original aim."

70. ' From the above facts it is made clear that the impugned Regulation, was issued with the purported object of securing the investment, made out of the Army Welfare funds, in the axed Company, primarily obsessed by the consideration that the money had been gainfully utilized by Inamur Rehman's family, and these revelations, made by the respondents themselves, leave no room for any enquiry.

71. ' Some more revealing documents were brought on record as a result of an application dated 30th September, 1979 moved by the petitioner requiring the respondent No, 1 to produce before the Court the complete file pertaining to the circumstances under which the enquiry, as alleged by the second respondent. In respect of Rehmania Sugar Mills was commenced on 22nd December, 1971, resulting in the promulgation of the impugned Regulation. It was also prayed that the first respondent may also be directed to produce and place before the Court the original file pertaining to the determination of the terms and conditions of transfer of the disputed Mill to the Fauji Foundation, and regarding forwarding of the impugned order to the Government Press for publication in the Official Gazette. The making of this application was prompted by the disclosure of the facts, as earlier mentioned, by the respondent No, 2 in their Counter-Affidavit. A notice of this application was issued to the respondents, and the application was granted with the consent of the learned Deputy Attorney General on 7-10-1979 who was directed to make available the necessary record as requested in the application. The learned Deputy Attorney however, expressed his inability to produce the requisite tile and made a statement to this effect in Court on 24-10-1979.

72. Which stands succeeded in the order Sheet. However, on the same date. Mr. Saveed A. Shaikh, learned counsel for the second respondent, produced a file maintained by the eauji Fouadation and supplied photostat copies of two confidential letters in support of the statement contained in the Counter-Affidavit of the second respondent dated 104-1973, in regard to the decision taken in the meeting held on 23-12-1971 for the promulgation of the impugned Regulation. No privilege was claimed in respect of the said documents, and photostat copies of the same were brought on the record and also supplied to the learned counsel for the petitioner. The respondent 1 had ample opportunity of producing the required file for several months until the conclusion of the hearing of the petition, which was completed on 23-12-1979, but the same was not availed of for reasons best known to the first respondent. The legal inference to be drawn from these facts is too obvious to be mentioned. It is also significant that the papers brought on the record came from the file of the second respondent, who is the sole beneficiary under the Regulation and the Order issued in furtherance thereof, both of which are challenged in this petition. As the said documents have important bearing on the decision of this case, it is necessary to reproduce the same.

73. ' The first letter dated 21-12-1971, issued under the signature of the Managing Director of the Fauji Foundation is as under : FAUJI FOUNDATION Personal/Confidential Managing Director Immediate Subject : Army Investments

(1) Army have invested large sums of money from their welfare funds in a number of unsound industrial projects. It is necessary that immediate steps may be taken to ensure safety to these investments.

(2) Firstly, Army have invested approximately Rs, 1.55 crore in the form of loans, debentures etc. In the Rehmania Fauj Sugar Mills which is being managed by the family of Mr. Inamur Rehman of Standard Bank. According to our information the loan agreement is extremely faulty and there is a grave danger of losing this money. The loans have been advance to the wife and son of Mr. Inamur Rehman for investment in this project and no adequate guarantees have been obtained. As Army does not hold any controlling shares in this Project, they have no say in the management of this Project.. Immediate steps are required to be taken to ensure the safe return of these funds before the Martial Law is lifted.

(3) Secondly, as you known large sums of Army's money has been deposited in the Standard Bank.

74. The financial position of this Bank is not highly reliable. Necessary steps have to be taken in co- operation with the State Bank to ensure the safety of these funds.

(4) Besides the above, some money has also been invested in a few other projects, whose viability is doubtful. I will like to briefly discuss possible measures to safeguard Army's interest as soon as convenient to the C.-in-C.

75. (Sd.) Maj.-Gen. Muhammad Nawaz Mallik.

76. P. S. (C. Brig. Amir Gulistan Janjua. S.

0. A. T. Pk.) No, 835/FF Dated 21-12-1971 ' The second letter, which was issued on 24-12-1971 and is also ' very significant for its contents, reads as under ; FAUJI FOUNDATION Managing Director Confidential

(1) The Directorate of Welfare and Rehabilitation G. H. Q. Has invested a sum of Rs, 155 lacs in the Rehmania Fauji Sugar Mill, a Public Limited Company, in the following manner :- {{TABLE}}

(1) Advanced as loan to Mr. Inamur Rehman and Shamim Khatoon, the Directors of the Co. ... Rs, 90 lacs

(ii) Advanced against issue of shares of Rehmania Fauji Sugar Mills Ltd. in the name G. H. Q. (Shares have been received) ... Rs, 25 lacs Oil) Advanced against Debentures of the Rehmania Fauji Sugar Mills Ltd. To be issued to G. H. Q. Not so far issued. ... Rs, 40 lacs Total ... Rs, 155 lacs {{TABLE}}

(2) Since the loan of Rs, 90 lacs mentioned in Sub-clause (1) above is not adequately secured and debentures of value of Rs, 40 lacs mentioned in sub-clause (iii) above also have not been issued yet and since this advance is also not adepuately secured, G. H. Q. May be confronted with serious difficulties in recovering this large amount of Rs, 130 lacs.

(3) It is proposed that :-

(a) Shares of the Company owned by Mr. Inamur Rehman and his family of the face value of Rs, 82 lacs and the shares held by the A. R. K. Industrial Management (the Managing Agent of the Company) to the extent of 8 lacs be transferred and registered in the name of D. W. R. G. H. Q.

(b) The debentures of the value of Rs, 40 lacs be issued and registrered in the name of the D. W. R.

77. G. H. Q.

(4) Alternatively, the Fauji Rehmania Sugar Mills Ltd. Should be wound up as a limited company and all its assets and liabilities sold and transferred on reasonable terms to the Fauji Foundation who shall then discharge all liabilities including the above and run the Mill as their proprietary concern. The Fauji Foundation is prepared to accept this arrangement.

(5) The whole case and the above proposals were presented to the President in his office on 23rd December 1971, in a meeting attended by the Minister for Presidential Affairs, the Defence Adviser, the Finance Secretary, the Managing Director Fauji Foundation and the Director Welfare and Rehabilitation G. H. Q. Since the Army investment amounted to Rs, 155 lacs in this project which has issued and paid up capital of 125 lacs only, the President decided in favour of the proposal in '4' above.

(6) It is requested that a Martial Law Regulation may be issued to give effect to this decision."

9. The learned counsel for the petitioner stated that there existed no direct decision in support of his aforementioned first contention because such a question could not have arisen before any Court and the impugned Regulation had the singular distinction of being unique in its nature. Such a law or a legislative instrument, according to the learned counsel, co d not have been passed in any civilized country.

78. ' It was contended that every Legislature of a civilized country has to act in conformity with certain procedures and the adoption of legislative procedure will necessarily eliminate the chances of it indulging in making executive feats. Unless, of course, the legislative power itself is exercised by an individual, in which case, no immunity can be claimed in respect of the laws passed by him.

79. ' The application of the principle of separation of powers has been insist upon by the Courts and it has been held that a Legislature cannot usurp the judicial power, and instead of making a law of general application it cannot pass any law in relation to an individual which may be described as "legislative Judgment and Sentence". This has been characterized by the Courts as usurpation of power and legislative instruments of such nature hav been struck down. In Asma Jilani's case at pap 266 of the report Salahuddi Ahmed, J., which discussing the theory of the trichotomy of the power made the following observations: "As regards the judicial power of this Court it may be stated that the 1962 Constitution was based on a Presidential Structure and it was accordingly erected on the theory of the separation of powers between the three limbs of the Government, "namely, the Legislature, the Executive and the Judiciary. The entire judicial power, including the concept of jurisdiction, was lodged with the judiciary. The Supreme Court is the creation of 1962 Constitution and its existence was continued under paragraph 5 of the Proclamation of Martial Law dated the 25th March, 1969. As the proclamation of the 25th March, 1969 and the Provisional Constitution Order, 1969, have ceased to exist due to the disppearance of General Agha Muhammad Yahya Khan from the scene, the 1962 Constitution has come back with full force and is operative until it is validly replaced by the elected representatives of the people. In Pakistan the legal sovereignty rests with Allah. Therefore, the judicial power has been conferred on the judiciary as agent of the Sovereign Authority, namely, Allah. In my opinion, therefore, this Court has the requisite power and jurisdiction to determine the questions that have been raised before it. The existence of the jurisdiction of this Court receives further support from the fact that the respondents have appeared before this Court and have submitted to the jurisdiction, of this Court. After all, in a civilized society who else can determine a dispute between the State or its ruler and its citizens."

80. ' In Ram Prasad Narayan Sahi and another v. The State of Bihar (1) the facts were that Mahrani Janki Koer, the respondent No, 2 in the appeal, was the proprietress of an extensive estate in Bihar known by the name of Bettiah Raj which was held and managed on her behalf by the Court of Wards, Bihar, constituted under Bengal Act I K of 1879. On 19-7-1946, the appellants, who were distantly related to the Mahrani, made a representation to the Government of Bihar praying for settlement in raiyati right, of 200 bighas of land, preferably in Sathi Farm or Materia Farm along with a certain quantity of waste lands. On 20-7-1946, the then Manager of the Court of Wards Estate, wrote a letter to the Collector of Champaran recommending that the applicants might be given settlement of the lands as prayed for, without payment of any Salami. The Collector, however, did not agree to this proposal nor did the Commissioner of the Tirhut Division, and the matter then came up for consideration before the Board of Revenue which recommended that settlement might be made with the applicants provided they were agreeable to pay Salami at half the usual' rates. On 14-10- 1946 the recommendation of the Revenue Board was accepted by the Provincial Government and six days later the Court of Wards accepted a cheque for

(1) AIR 1953 SC 215 Rs, 5,000 from one of the lessees towards payment of the Selami money and rent for the year 1354 F. S. The possession of the land was given to the appellants on 2-11-1946 and on 18th November the Manager of the Court of wards recorded a formal order fixing the Selami of the land at Rs, 3,988 and rent at Rs, 797. On the same day, a Hisab Bando-basti form was signed by the Circle Officer on behalf of the Court of Wards and by one of the lessees for himself as well as the constituted attorney of the other lessees. The lessees thereafter continued to possess the lands on payment of stipulated rent. Nothwithstanding the above facts the Bihar legislative Assembly on 3-6-1950 passed an Act known as the Sathi Lands (Restoration) Act, which received the assent of the Governor on 13-6-1960. The object of the Act, as set out in the preamble, was to provide for restoration of certain lands belonging to Bittiah Wards Estate which were settled contrary to the provisions of law in favour of certain individuals. Section 2 of the Act provided that the settlement of Sathi lands on behalf of the Bettiah Court of Wards Estate with the appellants, as per Order of the Manager of the Estate dated 18-11-1946, was declared null and void and no party to the settlement or his successor-in-interest shall be deemed to have acquired any right or incurred any liability under the same. Subsection (2) embodied a direction to the effect that the said lessees and their successors-in-interest were to quit possession of the lands from the date of the commencement of the Act and if they failed to do so, the Collector of Champaran was to eject them and restore the lands to the possession of the Bettiah Estate. The last subsection provided that the Bettiah Wards Estate on restoration of land to it was to pay to the lessees the Selami money paid by them and also such amount as might have been spent by them in making improvement on the said lands prior to the commencement of the Act. In substance, therefore, the Act declared the lease granted by the Bettiah Wards Estate to the appellants on 18-11-1946 to be illegal and inoperative and prescribed the mode in which this declaration was to be given effect to and the lessees evicted from the lands. Patanjali Sastri, C. J, held that the matter involved purely a private dispute between the parties and a matter for determination by duly constituted Courts to which is entrusted in every free and civilized society, the important function of adjudicating on disputed legal rights, after observing the well established procedural safeguards which include the right to be heard, the right to produce witnesses and so forth. The learned Chief Justice in that case also referred to an earlier decision of the same Court in Ameerun Nisa v. Mahboob Begwn (1) where the duly constituted legislative authority of the Hyderabad State had intervened in a Succession dispute between two sets of rival claimants to the estate of a deceased person and "dismissed" the claim of the one and adjudged the property to the other by making a special "law" to that effect. It was an admitted position in that case that the only purpose of the legislation, as stated in the preamble, was to end certain private disputes. The Supreme Court held that the dispute regarding Succession to the Estate of the Nawab was a legal dispute, pure and simple and, without determination of the point in issue by a properly constituted judicial Tribunal, a legislation based upon the report of a non- judicial authority and made applicable to a specific individual fell within the constitutional inhibition of Article 14 of the Indian Constitution. Notwithstanding the reference to Article 14 of the Constitution the above two decisions adequately support the contention of the learned , counsel that no Legislature could be permitted to pass a law for the resolutio of private disputes which could be decided by the Courts alone and such action amounted to entrenchment on the field of judiciary.

(1) AIR 1953 SC 91 ' In Smt. Indra Gandhi v. Raj Narain (1) it was held in para. 285 of the judgment as under ;- "According to Blackstone, a law and a particular command are distinguished in the following manner : a law obliges generally the members of a given community or a law obliges generally persons of a given class. A particular command obliges a single person or persons, whom it determines individually. Most of the laws established by political superiors are, therefore, general in a two-fold manner : as enjoining or forbidding generally acts of kinds or sorts : and as binding the whole community, or, at least whole classes of its members. He then said : See Blackstone : Commentaries Vol. I, page 44.

81. ' Therefore, a particular act of the Legislature to confiscate the goods of Titus or to attaint him of high treason does not enter into the idea of a municipal law : for the operation of this act is spent upon Titus only and has no relation to the community in general : it is rather a sentence than a law : ' The question involved in this petition concerns with the expropriation of the proprietary rights of an individual without reference to any public purpose.

82. ' The principle that the property of a person can be taken away only for a 'public purpose' does not owe itself to fundamental rights. The principle is inherent in the Constitution of every civilized State.

83. Article 31(2) of the Indian Constitution provides that "no property movable or immovable shall be acquired for public purpose under any law authorising such acquisition...", yet the Supreme Court of Indian in State of Bihar v. Kameshwar Singh AIR 1952 SC 252, laid down as under:- ' The exercise of power to acquire compulsorily is conditional on the existence of a public purpose and that being so, this condition is not an express provision of Article 31(2) but exists ialiunde' in the context of the power itself and that in fact is the assumption on which the clause proceeds."

84. ' It was contended by the learned counsel for the respondents that since fundamental rights guaranteed under the 1973 Constitution stood suspended, the validity of the Regulation and the Order could not be attacked on the ground of violation of any of the Articles relating to Fundamental Rights, by virtue of the Provisional Constitutional Order, 1969, where under Fundamental Rights given in paragraphs 2 to 15 and 17 in Chapter 1 of Part It of the 1962 Constitution stood abrogated. As a result of the decision of the Supreme Court in Asma Jilani's case, although the Constitution of 1962 stood automatically revived, the emergency proclaimed under Article 30 of the 1962 Constitution, however, still remained in force. Nonetheless the President was not competent to make any legislative measures, like the impugned Regulation, in view of the provision contained in clause 8 of Article 30 of the 1962 Constitution because even during the emergency period the power of the President to make laws by promulgation of Ordinance extended only to the making of laws, "within the legislative competence of the Central Legislature." The subjects in respect of which the Central Legislature could make laws under the 1962 Constitution are those which are set out in the 3rd Schedule to the said Constitution but the same do not include the subject of acquisition or requisition of property. The scheme of 1962 Constitution was that the laws in respect of subjects which were not

(1) AIR 1975 SC 2299 included in the 3rd Schedule could only be made by Provincial Legislature by virtue of the provisions of Article 132 of the Constitution. It, therefore follows that if during the emergency the President could not legislate within the provincial field, the Martial Law Regulation 103 could not have bee promulgated by the President even in exercise of his emergency power.

10. Mr. Sayeed A. Shaikh, learned counsel for the second respondent contended that inasmuch as Item No, 13 of the Third Schedule to the 1962 Constitution provided for the dissolution of Companies, the President and the Chief Martial Law Administrator was competent to issue the Regulation in the exercise of his powers in the central legislative field as designated in the Schedule. The Item 13 reads as under :- "13. Incorporation, regulation and winding-up of corporations,whether trading corporations or not (but not including Co-operative Societies, universities or municipal or local bodies), with objects and business not confined to one Province."

85. ' The above contention of the learned counsel has no force because admittedly the objects and business of Rehmania Sugar Mills Limited were confined to the Province of Sind only, and the Central Legislature could not have passed any law for winding-up of the Company acting under the authority of the said Item No,

13. Furthermore, paragraph 2 of the Regulation does not talk of the winding up of the Company because the Company is said to have been dissolved, which is an entirely different concept under the Company law. Dissolution by itself is not a field o legislation and to this extent therefore, the President and the Chief Martia Law Administrator had obviously transgressed the limits of the Constitution if, as stated by the learned counsel for the respondent, the Regulation I to be viewed as having been issued under the authority of Item No, 13 o the Third Schedule. Further, the President and the Chief Martial La Administrator had by virtue of C. M. L. A.'s Order No, 120/15/69-MIN dated 8th April, 1969 provided that all such functions and all such power as were assigned to or conferred upon the Governor of West Pakistan an the Governor of East Pakistan respectively of the Islamic Republic o Pakistan, or by or under any law, were to be exercised by the Martial La Administrators of Zone A and Zone B respectively ; and on this ground also the President and the Chief Martial Law Administrator was not competent to promulgate and issue the impugned Martial Law Regulation.

86. ' Mr. Sayeed A. Shaikh further sought to support his aforesaid contention by making reference to the judgment in the case of Board of Trustees v. The State of Delhi (1).

87. ' The facts giving rise to the Petition in that case were that one Hakim Muhammad Jamil Khan, who was a Physician of All-India repute and lived in Delhi, had started a Pharmaecutical Institute known as Hindustani Dawakhana in the year 1903. He had established a Medical College known as the Tibbia College. In the year 1911 he, along with certain other persons, had formed a Society styled as Anjuman-i-Tibbia and had it registered under the Societies Registration Act, 1860. ' In 1915 the name of the Society was changed to be called the Board of Trustees Ayurvedic Unani Tibbia College, Delhi. This Board ran the Tibbia College and an attached Hostel. The Pharmaecutical Institution was also managed by it. The main objects of the Board were to establish Colleges for the purpose of imparting higher education in the Unani and Ayurvedic systems of medicine to the inhabitants of India. To improve indigenous systems of medicine on scientific lines, and

(1) AIR 1962 SC 458 for that purpose to establish one or more Pharmaccutical Institutions and to have medical books compiled and translated etc. According to the rules, the minimum number of 35 members, called the Trustees, was to be elected from all the Provinces of India. The rules provide for the election of the office-bearers of the Board, powers and duties of the President, Secretary, and other Office Bearers, and the manner in which casual vacancies were to be filled. In 1949, a suit was brought in the Court of the Senior Civil Judge, Delhi, under section 92 of the Code of Civil Procedure against the Secretary and 31 members of the Board, and on an application for the appointment of a Receiver two local Advocates were appointed as Joint Receivers with plenary powers, who took over possession of the Dawakhana and the College. During the pendency of the Suit, the Delhi Estate Legislature passed an Act called the Tibbia College Act, 1952, which came into force on October 10, 1952. It was the constitutional validity of the Act which was challenged by the Board of Trustees and Hakim Muhammad Jamal Khan, who had stated that he continued to be one of the Trustees or members of the Board. The contentions raised on behalf of the petitioners were : that the old Board, which was registered under the Societies Registration Act, 1860 and the then Board of Trustees, the petitioner No, 1 in the petition, was a Corporation whose objects were not confined to the State of Delhi. Therefore, any legislation, with regard to it would fall under Item 44 of List I and not under 32 of List H. In short, the argument consisted of two parts-firstly, that the old Board was a Corporation, and, secondly, that its objects were not confined to one State. On these premises it was contended that the Delhi State Legislature had no legislative competence to make the impugned legislation which was beyond the extent of its legislative power under section 21 of Act XLIX of 1951. It was noted by the Supreme Court that if the Board were not a Corporation, then the impugned legislation would not fall under Item 44 of. List I at all ; alternatively, if the Board were a Corporation, but its objects were confined to only one State, namely, the State of Delhi ; then again Item 44 would not be attracted. On the other hand, it was contended on behalf of respondents that ; first, the Board was not a Corporation ; secondly, its objects did not extend beyond the State of Delhi ; and thirdly, the impugned legislation was supportable under Item 2 of List II relating to "education" and Item 28 of the concurrent list (List III) relating to Charities and Charitable Institutions." It may be mentioned here that Item 44 of List I of the Constitution of India is practically in the same terms as Item 13 of the Third Schedule to the 1962 Constitution and reads as under :- 44.-Incorporation, regulation and winding-up of corporations, whether trading or not, with objects not confined to one State, but not including Universities.

88. ' In dealing with the contentions raised on behalf of the petitioner, by the majority view, it was held that on registration under the Societies Registration Act the old Board of Trustees of the Ayuverdic and Unani Tibbia College of Delhi did not become a Corporation in the sence of being incorporated within the meaning of Entry 44 of List I ; it remained and continued to be an unincorporated Society and the Act, therefore, fell under Entry 32 of List II so far as the dissolution of the old Board was concerned ; and as such, the Legislation was well within the Legislative competence and powers of the Delhi State Legislature. As to the nature of the impugned Legislation it was clearly held the same provided for the transfer of the "Management of the Ayurvedic and Unani Tibbia Colleges Delhi, from the old Board to a new Board, and for that purpose the old Board was dissolved and a new Board was created with certain rights, powers and privileges to be applied for the exercise of powers and performance of duties, as laid down in section 7 of the Act. The impugned Act did not involve any interference with the proprietary rights of the members of the Board so as to constitute an infringement of Article 19(1) (f) of the Constitution of India, as would appear from the findings given in paragraph 23 of the judgment : "It is, therefore, necessary to ascertain the precise rights the members of the Board possessed to see whether the changes effected by the impugned Act amount to an infringement of their rights within the meaning of Article 19(1) (f ). . .

89. ' The only question is whether the right to determine the body which shall administer the funds or property of the dissolved society which they had under the pre-existing law is a right to acquire, hold and dispose of property within the meaning of Article 19(1) (f ). In the context in which the words 'to dispose' of occur in Article 19(1) ( f ) they denote that kind of property which a citizen has a right to bold the right to dispose of being party of or being incidental to the right to hold. Where, however, the citizen has no right to hold the property, for on the terms of section 14 of the Societies Registration Act the members have no right to 'hold' the property of the dissolved society, there is, in our opinion, no infringement of any right to property within the meaning of Article 19(1) (f ). In this view, the question as to whether the impugned enactment satisfies the requirements of Article 19(5) does not fall to be determined."

90. ' From the above discussion of the case, it is clear that the judgment relied upon by the learned counsel for the second respondent is absolutely inapplicable to the point involved in this case and is irrelevant.

91. ' Mr. Muhammad Ali Saeed, learned counsel for the petitioner referred to a decision of the Supreme Court of United States in the case of The Trustees of Dartmouth College v. Woodward (1) which arose out of somewhat similar facts as were involved in the above mentioned case of the Board of Trustees v. State of Delhi. This case. Has relevance to the facts of this petition because in terms of the Order notified under the impugned regulation, the loan agreement dated 20th January 1970, solemnly entered into between the petitioner and his mother on the one part, and the Welfare and Rehabilitation Directorate, on the second part, was nullified by means of purported Legislation.

92. ' The facts in the Darmouth College case were that one Dr. Wheelock had founded a Charity, on funds owned and procured by himself ; that he was at that time, the sole dispenser and sole administrator, as well as the legal owner of these funds : that he had made his will, devising this property in trust to continue the existence and uses of the school, and appointed trustees ; that in this state of things, he had been invited to fix his school permanently in New Hampshire, and to extend the design of it to the education of the youth of that province ; that, before he removed his school, or accepted this invitation, which his friends in England had advised him to accept, he applied for a charter, to be granted, not to

(1) (1819) 4 Wheat 629 whomsoever the king or Government of the province should please, but to such persons as he named and appointed, viz., the persons whom he had already appointed to be the future trustees of his charity by his will. The charter, or letters patent, then proceeded to create such a corporation, and appointed twelve persons to constitute it, by the name of the "Trustees of Darmouth College" ; with all ordinary powers of corporations. A corporate existence and capacity was given to the trustees, with certain specified privileges and immunities to enable the founder and his associates to better manage the funds which they themselves had contributed, and such others as they might afterwards obtain.

93. ' After the institution, thus created and constituted, had existed, uninterruptedly and usefully, nearly fifty years, the Legislature of New Hampshire passed three acts the constitutionality of which was challenged and the learned counsel for the petitioner contended thus : "It is not too much to assert that the Legislature of New Hampshire would not have been competent to pass the acts in question, and to make them binding on the plaintiffs without their assent, even if there had been, in the constitution of New Hampshire, or of the United States, no special restriction on their power, because these acts are not the exercise of power properly legislative. Their object and effect is to take away from one, rights, property, and franchises, and to grant them to another.

94. This is not exercise of a Legislative power. To justify the taking away of vested rights, there must be a forfeiture ; to adjudge upon and declare which is the proper province of the judiciary. Attainder and confiscation are acts of sovereign power, not acts of Legislation. The Legislature of New Hampshire had no more power over the rights of the plaintiffs than existed, somewhere, in some Department of Government, before the revolution. The British parliament could not have annulled or revoked this grant as an act of ordinary Legislation. If it had done it at all, it could only have been in virtue of that sovereign power, called omnipotent, which does not belong to any Legislature in the United States."

95. ' It was further contended by Mr. Webster who, appeared on behalf of the plaintiffs, that :- "By the law of the land is most clearly intended the general law ; a law which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which new pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another. Legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land."

96. ' On the basis of the above-mentioned premises, and certain other contentions. Mr. Webster, then posed the following question and sought its reply as under :- "Are, then, these acts of the Legislature, which affect only particular persons and their particular privileges, laws of the land ? Let this question be answered by the text of Blackstone : "And first, it (i,e, law) is a rule ; not a transient sudden order from a superior, to, or concerning, a particular person ; but something permanent, uniform, and universal. Therefore a particular act of the Legislature to confiscate the goods of Titius, or to attaint 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."

97. ' The above judgment was passed on appeal brought before the U. S. Supreme Court by the Trustees of Dartmouth College challenging the verdict of the superior Court of Judicature of New Hampshire which had rendered the judgment in favour of the defendant Williams H. Woodward.

98. The single question to be considered was, whether the Acts to which the verdict referred, violated the Constitution of the United States. The opinion of the Court was delivered by Marshall, Ch. J. ; who, after mature, deliberation, came to the conclusion that the Acts of the Legislature of New Hampshire, which were stated in the special verdict found in the cause, were repugnant to the Constitution of the United States ; and, in the result, the Appeal was upheld and the judgment of the State Court was reversed.

99. ' After the promulgation of Martial Law on 25th March 1969, General A. M. Yahya Khan, Chief Martial Law Administrator made and promulgated the Provisional Constitution Order on 4th April 1969.

100. Paragraph 3(1) of the said Order provided that notwithstanding the abrogation of the Constitution of 1962 the State of Pakistan, shall, except as otherwise provided in the Order, be governed as nearly as may be in accordance with the said Constitution. Likewise under the promulgation of Martial Law on 7th October 1958, by Muhammad Ayub Khan, a similar provision was - made for the Governance of the country vide paragraph 2(1) of the Laws (Continuance in Force) Order, 1958 and, therein too, it was provided that notwithstanding the abrogation of the Constitution of 23rd March 1956, Pakistan shall be governed as nearly as may be in accordance with the late Constitution. In Dosso's case, while interpreting the provisions contained in para. 2 of the Laws (Continuance in Force) Order, 1958, A. R. Cornelius, J. Had observed as under : "Consequently, the words in section 2 of the Order, viz. "In accordance with the late Constitution" only mean that in matters affecting the Government of the country, for which no provision is made in any instruments issued under the authority of the new regime, where guidance is needed, it is to be sought by reference to the wording of provisions contained in the Constitution of 1956 applicable in the like case. The direction is one which operates by reference to a previous instrument, without giving validity to that instrument."

101. ' Later, again while discussing the meaning of the word "governed", which appeared in sub- paragraph 2(1) of the Laws (Continuance in Force) Order, 1958, the same learned Judge in Province of East Pakistan v. Muhammad Mehdi Ali Khan (1) was pleased to observe that perhaps the words "shall be governed as nearly as may be in accordance with the late Constitution" had been somewhat undervalued in Dosso's case, and then this is what he said :- "In an occupied territory a military Government replaces the suspended sovereignty, and Martial Law replaces the previous Government

(1) PLD 1959 SC (Pak.) 387 agencies. But it does not follow that such rule is purely arbitrary as to power or uncontrolled by principle or unrestricted as to method. Like any other form of rule over human beings, it is obliged by the circumstances to adopt itself to the circumstances in order to gain its ends, and one such circumstance of the utmost importance is the settled habits and sentiments of the people."

102. ' Again, similar views were expressed by the Supreme Court in Muhammad Afzal v. The Commissioner (1) at p. 410 : "The Martial Law proclaimed chose a system of Government which was not to be a negation of law but an orderly system following a pattern of its own selection not dissimilar to the pattern of civil administration prevailing in the country. The terminology adopted, therefore, to describe its Legislative measures, was not without significance."

103. ' Later at page 411 of the same report it was observed by their Lordships as follows:- "The Laws (Continuance in Force) Order was intended to be and was a Constitution given to the country by the victorious revolution and that it was a Constitution for all including the law-giver, for, indeed had not the law-giver itself proclaimed that it would govern the country in accordance with its provisions and that the Martial Law that would prevail thereafter would be no negation of law but an orderly Martial Law, which would govern in accordance with the prime law given by it ? That the Government contemplated under the Laws (Continuance in Force) Order did not extend only to the performance of executive functions but also comprised within it legislative and judicial functions."

104. ' In Mir Hassan's case (2) at p. 816 it was held by a Full Bench of the Lahore High Court as under :- "Therefore, it follows that even if there is a Martial Law rule in the country such rule is not arbitrary or uncontrolled by principles nor is it the simple and pure will of the Commander."

105. ' As a result of the above discussion, I am of the opinion that notwithstanding the existence of Martial Law, the President and the Chief Martial Law Administrator was not at liberty to make and promulgate any arbitrary Legislative instruments disregarding the limitation contained in the abrogated Constitution of 1962. There also existed such constraints upon his power as are essential and necessary concomitants to the exercise of Legislative functions by the Legislatures of the civilised countries i,e,, the constraints of the norms of law-making. As observed by Sajjad Ahmed Jan, J. In Asma Jilani's case : "A law is not law merely because it bears that label. It becomes law only if it satisfies the basic norms of the legal system of the country."

106. ' The learned counsel for the petitioner contended that the Regulation in substance was a law in relation to the sequestration of proprietary rights of an individual juristic person, namely, the Rehmania Sugar Mills Ltd. And/or its constituents, namely, the promoters and shareholders of the Company, and, therefore, the principle under which, if at all, the Regulation could be justified is the principle of 'eminent domain' or of the 'nationalisation'.

107. The concept regarding the power of 'eminent domain' constituting one of the essential attributes of the sovereignty of the State is said to have

(1) PLD 1963 SC 401 (2) PLD 1969 Lah. 786 originated in 1925, when Hugo Grotious wrote about this power in his work "De Jure Belli Et Pacis".

108. The State in the exercise of its power of 'eminent domain' is authorised to take the private property of the individual for 'public purpose' or for the 'public good' and this power is an inseparable incidence of sovereignty and it exists without any declaration to that effect.

109. ' Since the first respondent has chosen to suppress the file relating to the issuance of the impugned Regulation and the Order, and has stood by the statement of the second respondent justifying the promulgation of the same on the grounds disclosed in the counter affidavit, our task has been made easy as the matter no longer needs any investigation and the facts, as presented, alone are to be considered for deciding the petition. Indeed, the action of the first respondent in withholding the relevant file from the Court calls for drawing an adverse inference, and it can be safely presumed Q that either the relevant file did not exist at all and, if the same existed and was produced, it would have gone against the interest of the respondents.

110. ' As stated earlier, the respondents have themselves claimed that the impugned Regulation was issued with a view to secure the investments made in the Company out of the Army Welfare funds.

111. This proclaimed object has no nexus with any 'public purpose'. In Charanjit Lal v. Union of India (1), B. K. Mukherjee J., in relation to somewhat similar legislative instrument had cautioned as under :- "Legislation based upon mismanagement or other misconduct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainer, and should not, I think, receive judicial encouragement."

112. ' Vaughan Williams, L. J., in Westminster Corporation London v. North Western Railway, U. S. (2), said as under:- "You are acting mala fide if you are seeking to acquire land for a purpose not authorized by Act."

113. ' The above principle was followed in Webbs v. Minister of Housing (3).

114. ' Lord Greene, Mr. Treated 'bad faith' as interchangeable with extraneous considerations' in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (4).

115. ' In American Jurisprudence, Volume 18, page 658 it is mentioned:- "It was often intimated or held that an act authorizing exercise of eminent domain for private purposes was beyond the power of the legislature because it was robbery, not legislation."

116. ' Cooley, in his Treatise on the Constitutional Limitations 1972 Edn., p. 91 while speaking of the 'legislative power' observed as under:- "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the Federal and State Constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another, without trial and judgment in the Courts; for to do so would be the exercise of a power which belongs to another branch of the Government, and is forbidden to the legislative."

(1) AIR 1951 SC 41 (2) (1904) 1 Ch. 759

(3) (1965) 1 W L R 755 (4)(1948)1 K B 223 "That is not legislation which adjudicates in a particular case' prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of Government."

117. ' Later, talking about law, at page 354 of the same book, he said as under:- "Everything which may pass under the form of an enactment is not the law of the land"

118. ' The words "by the law of the land", as used in the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense."

119. ' As regards the power of the Government to acquire property the learned author said that in every Government there is "inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confirm the power, though they often surround it with safeguards to prevent abuse. But in relation to limitation placed on the exercise of such power it was stated by him that: "There is no rule or principle known to our system under which private property can be taken from one man and transferred to another for the private use and benefit of such other person, whether by general laws or by special enactment. The purpose must be public, and must have reference to the needs of the Government. No reason of general public policy will be sufficient to protect such transfers where they operate upon existing vested rights."

120. ' Further, at page 362, while discussing about vested rights of the parties, this is what Cooley has to say: "Forfeitures of rights or property cannot be adjudged by legislative act, and confiscations without a judicial hearing and judgment after due notice would be void as not due process of law. Even Congress has no authority to protect the executive Officers of the Government for their acts during the existence of a civil war, by depriving parties who are illegally arrested by such Officers of all redress in the Courts."

121. ' Cooley in the same book in his discussion on the subject of 'purpose' observed that it was conceded, on all hands, that the purpose for which the right to acquire the property may be exercised must be a 'public purpose', and that the Legislature had no power in any case to take the property of one individual and pass it over to another without reference to a public use, and relying upon several decisions, the learned author reproduced, therefrom, the following passage: "The right of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer . . . . . . The public use implies a possession, occupation, and enjoyment of the land by the public, or public agencies; and there could be no protection whatever to private property, if the right of the Government to seize and appropriate it could exist for any other use."

122. ' Salmond in "Jurisprudence 12th Edition, p. 43 under the head "Law as a System of Rules" has said as under:- "But rules differ from commands in their generality. Whereas a command normally calls for one unique performance, a rule has general application and demands repeated activity."

123. ' In part 2 of Bernard Schwartz's book "A Commentary on the Constitution of United States" 1977, Edn.

124. At p. 23 it has been said as under:- "In Webster's conception, due process is more than a procedural guaranty. The law under which a man is condemned, in his view, must be a general law one of the general rules which govern the society. Implicit in this notion is a prohibition against discriminatory legislation. Even if all procedural requirements are adhered to, a law which impinges upon life, liberty, or property is invalid if it is not a general statute which applies to every man the same rules which govern the rights of his neighbours."

125. ' Our own Supreme Court in Ziaur Rehman's case has laid down that any acts which seriously impair the right of the citizens except in so far they were designed to advance the social welfare and national solidarity did not call for condonation.

126. ' As a general principle of law it is not necessary to allege moral oblivity for the purpose of establishing mala fide as the latter may well exist independently of the state of mind. In Edward Mills Company Ltd. v. State of Ajmer (1), it was held that an order which was included in law had to be legislative and not of an executive character.

127. ' The learned counsel for the petitioner contended that the impugned Regulation amounted to legislative punishment as was disclosed from the facts of the case. In American Jurispurdence, Vol. 18, page 658'it has been stated as under:- "It was often intimated or held that an Act authorising exercise of eminent domain for private purposes was beyond the power of the Legislature because it was robbery not legislation.

128. ' It General R. R. Company v. Gallatin (2), Strong, J., in his dissenting judgment held:- "Purporting to take property of A and transferring it to B was not a legislation nor would it be law."

129. ' It was not pleaded on behalf of the respondents that the impugned Regulation was issued for any 'public purpose' and the facts disclosed by them go to prove the contrary. Nonetheless, Mr. Sayeed A. Shaikh, learned counsel for the second respondent attempted to argue that the Regulation was issued for the benefit of a class of army personnel, and in that sense it was intended to serve a 'public purpose'. But as the facts do not warrant any such inference, and object of issuing the Regulation has unequivocably been asserted by the respondents, it is not necessary to refer to the decisions which were cited to by the learned counsel in support of his above contention, as such consideration, indeed, has no relevance to the admitted facts. Besides if the very purpose is mala fide, it is not a 'public purpose'.

11. The allegation that the impugned Regulation and the Order notified thereunder were promulgated and issued mala fide now remains to be examined. This respect of the matter has somewhat indirectly been discussed above in connection with the examination of other contentions raised on behalf of the petitioner.

(1) AIR 1955 SC 25 (2) (1879) 99 U S'727 The particulars of mala fide, as pleaded in the petition, are reproduced hereunder:

(i) The petitioner's father, Mr. Inamur Rehman, who at the time of setting up of the Sugar Mill in question, was the Managing Director of the Standard Bank Limited and also controlled the Standard Insurance Co. Ltd., and was known to have a controlling interest in other enterprises, was approached during the 1970, election period by Mr. Z. A. Bhutto to donate a large sum to the Peoples Party for us in its election campaign. The petitioner's father did not comply S with Mr. Bhutto's suggestion whereupon in an election meetin addressed by Mr. Bhutto in Badin the latter had challenged Mr. Inamur Rehman to retain the said sugar mill V the People's Party came to power.

(ii) The petitioner's father was known to enjoy the confidence of the Armed Forces by reason of the exemplary services which the Standard Bank Limited rendered to the Armed Forces particularly during the 1965, war with India when the said Bank looked after the interest of the Jawans while they were on the battlefield. It was in recognition of these services that the petitioner's father was also bestowed the S. Pk. Title. Soon after Mr. Z. A. Bhutto took over as the President and Chief Martial Law Administrator in 1971, he lost no time in bracketing the petitioner's father with all those officers of the Armed. Forces who he intended to remove from their positions and to humiliate. Accordingly on 20th December, Mr. Bhutto took over as the President and Chief Martial Law Administrator and on 23rd of December, the petitioner was placed under house arrest together with the several other officers of the Armed Forces. The Petitioner submits that the wresting of the Sugar Mill was one of the punishments meted out to the petitioner's father for being in the good books of some Military Officers. And for commanding the respect of the then president, General Yahya Khan.

(iii) The petitioner submits that the reason later advanced on behalf of the respondents for dissolution of the Rehmania Fauji Sugar Mills Ltd. And for its transfer to the Fauji Foundation was that the mill in question was established primarily with the aid of the Army funds and that even the promoters' own equity in the Company owning the said mills had been acquired with the aid of a loan of Rs, 90 lacs from the welfare Directorate of the Army. The petitioner submits firstly that the petitioner's father was the Managing Director of a first-class scheduled bank with a controlling interest in, the banks shareholding and it should not have been difficult for the petitioner's father to raise fairly large funds on easy terms from banks and other financial institutions. Secondly if indeed the petitioner's father wielded the tremendous influence with the top brass of the Army as is alleged by the Fauji Foundation in their counter affidavit in the present case, the then president of Pakistan would have directed any of the large financial institutions to make the funds available to the promoters for investiment. This was, however, not done and on the other hand to promote its own interest the welfare Directorate itself preferred to advance the loan and on terms which were much less favourable to the promoters than the terms upon which a similar loan could have been obtained from a financial institution.

(iv) The petitioner respectfully begs of this Hon'ble Court to take judicial notice of the fact that there are few industrial undertakings and enterprises which are established fully by enterpreneur with the help of their own private funds and on the contrary all the major industrial projects have been invariably established with the funds borrowed from financial institutions like the PIC1C, the IDBP, THE NIT, the ICP, Commercial Banks, Insurance Companies and several similar financial institutions.

130. The main reason for taking over the mill in the instant case was that the promoters had established it with the aid of the Army funds and this reason, on the face of it, smacks of mala fide and bad faith in view of what is stated above and is otherwise inherently so.

(v) Not content with the sudden dissolution of the Company by a Martial Law Regulation, the private promoters of the Company as well as the petitioner's father were openly maligned, defamed and their character assassinated towards this end recourse was had also to valuable T.

131. V. Time wherein an Officer of the Fauji Foundation went on the T. V. To defame the Promoters and the petitioner's father. Press conferences were held and although M. L. R. 104 had guaranteed secrecy of the foreign exchange declarations made by the declarants an officer of the Fauji Foundation, Col. (Retd) Safdar Beg, openly alleged in the press conference that the petitioner's father had declared foreign exchange. In other words the entire Government and Fauji Foundation machinery was geared to the task of maligning and defaming the promoters of the company and the petitioner's father and making them appear as demons and all this for the so-called reason that investment in the Company were made by the promoter out of loan obtained from the Army.

(vi) The malice'prevading the mind of the then President of Pakistan Mr. Z. A. Bhutto in relation to the petitioner's father is further evident from the fact that when the petitioner's father declared his foreign exchange under M. L. R. 105 and caused the same to be repatriated the entire repatriated amount including the bonus amount thereunder was frozen by the State Bank of Pakistan under instructions from the Central Government at a time when no law for such action existed.

132. Thereafter an Ordinance was passed called the Foreign Exchange (Prevention of Payments)

133. Ordinance, 1972, giving legal cover to the actions taken by the State Bank of Pakistan against the petitioner's father. The said Ordinance and the relative Act was challenged by the father in this Hon'ble Court and each time the petition came up for hearing and a legal lacuna in the law was discovered, the law was amended with retrospective effect to remove the lacuna. This drill was performed three times during the pendency of the case. The petitioner further states with the fullest sense of responsibility that no rimilar action under the above law was taken against any other individual person or body corporate.

(vii) The petitioner submits that much prior to nationalisation of the Banks the petitioner's father was removed from the Managing Directorship of the Bank and the State Bank of Pakistan once again gave its willing shoulder to help the Government of Pakistan in achieving this further object of the Government headed by Mr. Z. A. Bhutto.

(viii) The petitioner further submits that the mula fide of the actions impugned herein is further evident from the very intent and tenor of M. L. R. 103 followed by Notification No, 22 of 1972 whereunder the so called terms and conditions of transfer were unilaterally determined under the latter the compensation for charge was fixed at Rs, 8'69 per share of Rs, 10 and even this compensation amount utilised for repayment of the loans payable by the promoters and/or the Managing Agents of the Company although these loans were secured loans and were repayable according to arrangements in writing at a later date.

(ix) The petitioner submits that the Notification No, 22/72 was not signed as asserted by the respondents on 20th April, 1972 but after 20th April, 1972. This the petitioner is now able to establish on the strength of material that he has seen.

(x) The petitioner further states that enquiries made by him reveal that soon after Mr. Z. A. Bhutto took over as the President and Chief Martial Law Administrator on 20th December, 1971 he expressed his decision to deprive the petitioner's family of the Rehmania Fauji Sugar Mills and directed that a case be made out for the action intended to be taken by him and the matter be brought before him immediately. Accordingly, as per the respondents own affidavit a probe was ordered on 20-12-1971 and decision taken on the 23-12-1971.

134. ' The first respondent did not file any counter-affidavit to the amended petition containing the above allegations. The allegations were, however, denied generally in the counter-affidavit filed on behalf of the second respondent.

135. ' It was, however, contended by Mr. Shah Jamil Alam, the then learned Deputy Attorney General, that inasmuch as the allegations of mala fide were directed against Mr. Z. A. Bhutto, it was unnecessary for the first respondent to file any counter-affidavit in respect of the allegations brought through amendment of the petition, as reproduced above. The argument has no force because, except for the allegation regarding the making of speech by Mr. M. A. Bhutto during the election campaign of 1970, the other grounds were directed against him in his official capacity as the President and the Chief Martial Law Administrator. The file pertaining to the making of the Regulation could well have been produced to show the official notings to prove that the Regulation was not vitiated on account of any extraneous and collateral considerations and was issued as a usual legislative instrument. This was not done and, therefore, it is only legitimate that adverse inference should be drawn from this infirmity shown by the defence.

136. ' It was pleaded on behalf of the petitioner that in the orignal petition also allegations of mala fide were made, but this had to be done in a very discreet and subtle manner as the petitioner dare not then plead them openly to cause annoyance to the highest authority in power. The second respondent in their counter-affidavit brought to light the hidden facts and thus had not only necessitated the making of the application for amendment, but also furnished additional particulars of mala fide. It was also stressed on behalf of the respondents that in the Petition, as filed initially and in the affidavit in opposition, filed in reply to the counter-affidavit, of the second respondent, the principal allegation of the petitioner was that the making of the Regulation was a masterly manoeuvre on the part of the Fauji Foundation, and thus the allegations were not as much directed against the maker or the making of the impugned Regulation. However, the pleadings, read as a whole, do not show this, and, undoubtedly, the petitioner had in fact raised the plea of mala fide in a subdued tone against the very making of the Regulation also. In so for as the allegation then made by the petitioner in his affidavit in opposition regarding the Fauji Foundation manoeruing the issuance of the Regulation is concerned, that now stands confirmed from the assertions made and the documents coming from the private file of the Fauji Foundation itself. The important fact further to be noted is that the allegation of mala fide was not pleaded by the petitioner in substitution of the mala fide pleaded against the Fauji Foundation, but in amplification of the allegations of mala fide already pleaded. Then there is one more aspect of the pleadings of the second respondent which needs mention. In the anxious pleadings the second respondent had attempted to mix up the identity of the Army Welfare and Rehabilitation Directorate, which is a distinct and independent body with the G. H. Q. And the Pak. Army in order to bring about the anxiety which called for the making of the Regulation. On such pleadings, by the same token, it could be argued that Mr. Z. A. Bhutto, who was at the relevant time only a three day old Chief of the Armed Forces and the Chief Martial Law Admiministrator, was successfully prevailed upon by the Army authorities to accede to their self-motivated request of making the impugned Martial Law Regulation in order to kill the Company. Do not such assertions, therefore, throw their weight to tilt the balance on the other side the side of justice ?

137. ' Be that as it may, it is the substance of the case and the pleadings as a whole which are to be examined to meet the ends of justice. The above objections raised on behalf of the respondents have no merits and must fail.

138. ' In order to appreciate the petitioner's allegations of mala fide, it is necessary to recapitulate some relevant facts, and in doing so some repetition is unavoidable.

139. ' The admitted facts as pleaded and brought on the record are : that the proposal for the setting up of a Sugar Mill at Khoski was, in 1968, initially made to the second respondent by the Adjutant General and was turned down by them. At the instance of the G. H. Q. The Government of West Pakistan had suggested the name of Mr. Inamur Rehman to whom permission for the setting up of the Mill was granted. Inamur Rehman, or for that matter, the petitioner and the promoters of the Company were then induced to set up the Mill. The Army Welfare Directorate was a participant in the equity of the Company and had made initial contribution of Rs, 25 lacs, and its Director was amongst the Board of Directors of the Company. The Army Welfare Directorate had voluntarily advanced a loan of Rs, 90 lacs to the petitioner and his mother under an agreement dated 21-1- 1970, in business like manner fully securing their interest. This was an independent transaction and the borrowers, in the circumstances, were free to use the amount of loans in any manner they liked.

140. No complaint was ever made by the Army Welfare Directorate that the amount advanced by them in the equity of the Company or given as loan to the petitioner and his mother was insecure. The facts, on the contrary, go to show that the promoters of the Company had well utilised the funds and successfully established the Sugar Mill which had gone into production before the impugned action was taken. An amount of Rs, 5,40,000 was paid by means of a Pay Order No, CZA252532 of Standard Bank Ltd. To the Welfare Directorate towards interest on the loans amount on 17-12-1971.

141. The Rehmania Sugar Mills is the only Sugar Mill in the whole of Pakistan which was acquired by means of a Martial Law Regulation. Sugar Mills were not nationalised in Pakistan under the Economic Reforms Order 1972, which was notified on 3rd January, 1972, just three days after the promulgation of the impugned Regulation.

142. ' The other significant facts are : that the question regarding the issuance of the impugned Regulation was concieved in the course of a meeting held in the President's Office on 23-12-1971.

143. Later, the second respondent, as per their letter dated 24-12-1971, made a request for the issuance of a Martial Law Regulation, in the light of the purported decision taken in the aforesaid meeting.

144. The penultimate paragraph of the said letter, which has already been reproduced hereinabove, read as under :- "It is requested that a Martial Law Regulation may be issued to give effect to this decision."

145. ' The relevant file showing the formalities and the making of the Regulation was not produced and yet more disturbing, is the fact that file containing, the minues of the meeting held on 23-12-1971 in the President's Office had come from the record of the second respondent, which is an interested party. These facts indeed go a long way to support the petitioner's allegation that the Regulation was in fact an executive fiat and not a legislative instrument. Coupled with the above facts, there are other circumstances of intrinsic value, which are also noteworthy, Admittedly, in the note put up for consideration in the meeting held on 23-12-1971 the name of Inamur Rehman and his family alone was given prominence. No mention was made about much larger and huge advance made to the Company by several other financial institutions, namely, P.I.C.I.C., N.I.T., I.C.P. And National and Grindlays Bank, London Branch. According to the admission of the second respondent, the P.I.C.I.C.

146. Alone had advanced a loan of Rs, 2'43 crores to the Company. The amount advanced by the N.I.T.

147. And I.C.P. Amounted to Rs, 35 lacs, and the foreign exchange loans advanced for the purchase of machinery totalled Stg 23,10,000. Mr. Z. A. Bhutto had assumed the office of the Chief Martial Law Administrator on 20th December, 1971, and just three days thereafter, and significantly enough, on the date when the meeting was convened in his office, Mr. Inamur Rehman was placed under house arrest. Judicial notice is also to be taken of the circumstances prevailing at the relevant time when the Regulation came to be promulgated. Pakistan had lost half of its territory and was still groaning under the effects of the crippling war, which had broken the country into pieces. Pakistan had suffered an humiliating defeat at the hands of India. More than 90,000 prisoners of war were languishing in Indian jails and their families in Pakistan were demanding for their immediate repatriation. The economy of the country was in shambles and the political and social fabric was in complete disarray. It is astonishing that in the midst of these traumatic events the President and the Chief Martial Law Administrator should have thought of the trivial issue of winding up of an incorporated Company. The petitioner's cry for justice was not heard in spite of his printed representation to the President in which promoters of the Company had given a detailed account of their performance, and this document which forms part of this petition, indeed makes an impressive reading.

148. ' Additionally, it was urged by Mr. Muhammad Ali Saeed that judicial notice may also be taken of certain other contemporaneous incriminatory actions taken against Mr. Inamur Rehman. He pointed out that pursuant to the promulgation of the Foreign Exchange Repatritation Regulation, 1972 (Regulation 104) Mr. Inamur Rehman had declared his foreign exchange holding, but soon after, the President had made and published the Foreign Exchange Prevention of Payments)

149. Ordinance, 1972 which provided that notwithstanding anything contained in M. L. R. 104 the State Bank of Pakistan may, and if so required by the Federal Government by order in writing shall direct an authorised dealer in foreign exchange through whom any person had repatriated any amount of foreign exchange in Pakistan in pursuance of the said Regulation to deposit with the State Bank within the specified time, the amount representing the aggregate of the rupee equivalent of the amount so repatriated and any other amount payable because of such repatriation. It was asserted by Mr. Muhammad Ali Saeed, and such statement was not denied by the respondents, that Inamur Rehman was the only person who had fallen victim to the said Ordinance as the amount repatriated by him was frozen by the State Bank at the instance of the Federal Government. According to the learned counsel, the amount was actually frozen in April, 1972, even before the promulgation of the Ordinance. It was further stated that the second respondent alone stood to gain by the said Ordinance, which had, in fact, under the enabling provisions contained therein, applied to the Federal Government for the payment to them of the entire amount repatriated by Mr. Inamur Rehman and their application in this behalf was still pending. On the basis of the above facts it was asserted that mala fide was inherent in the Regulation itself and this was amply supported by evidence.

150. ' I have given very anxious consideration to the above facts and circumstances in which the impugned Regulation was issued. The relevant case-law on the subject has also been discussed in detail. The irresistable conclusion reached by me, in the circumstances, is that the idea of making the Regulation was conceived in the course of a private discourse, and a Regulation adopted in the meeting, was issued in the form of Regulation. It was passed in colourable exercise of legislative power for a collateral purpose. The facts and r attending circumstances, taken together, also support the contention of the petitioner that the impugned Regulation was recriminatory in nature.

151. Mala fide vitiates the most solemn of the acts. As laid down by the Supreme Court in Ziaur Rehman's case a mala fide act stands in the same position as an act done without jurisdiction because no Legislature when granting a power to do an act can possible contemplate the perpetration of injustice by permitting the doing of that act mala fide. I have already expressed my opinion that a legislative instrument, under given circumstances, can be challenged on the ground of mala fide and, therefore, the above observations of the Supreme Court are equally applicable to the Regulation. The Supreme Court has also laid down firmly that the protection under Article 281(1) of the Interim Constitution, or Article 269 of the Constitution of 1973, would not extend to mala fide acts. Even if it was held that the provisions of Articles 281 and 269 of the Interim and Permanent Constitution respectively, were to apply the Regulation, nonetheless, having been issued mala fide, would not be covered by the umbrella of protection provided by the two Articles.

152. ' The irresistable conclusion which, therefore, follows is that the impugned Regulation was issued mala fide and is void ab initio.

12. Now the question with regard to the validity of Order issued as Notification No, 22/72 dated 20th April, 1972 remains to be answered. The same is reproduced below :- "No, 22/72.-In exercise of the powers conferred by paragraph 2 of Martial Law Regulation No, 103, the President and Chief Martial Law Administrator is pleased to make the following order to determine the terms and conditions of the transferred referred to in that paragraph, namely :-

1. In this order, unless there is anything repugnant in the subject or context ;

(1) "Assets" includes land, buildings, machinery, equipment, and other fixed and current assets.;

(2) "Company" means the Rahmania Fauji Sugar Mills Limited, Khoski (since dissolved by Martial Law Regulation No, 103).

(3) "family of promoters" means father, sister, husband, sons and daughters of any of the promoters.;

(4) "liabilities" includes long term loans, advances for issue of debentures, temporary loans and current liabilities ;

(5) Managing Agents" means the "ARK Industrial Management Limited" who were formerly the Managing Agents of the Company ;

(6) "Promoters" means Mr. Shamim-ur Rahman and Begum Shamim Khatoon, recorded as shareholders in the return filed with the Registrar of Joint Stock Companies ;

(7) "Shareholders" means persons who were shown as members of the Company in the latest return filed by the Company with the Registrar of Joint Stock Companies on or before the 30th December, 1971.

153. 2.-(1) The Fauji Foundation shall on and from the 30th day of December, 1971, be sole owners of the Company, and shall have the right to continue in business in the name of Fauji Sugar Milis' Khoski, and shall have full powers to manage, expand, control, lease and dispose of the assets of the Company.

2. The Fauji Foundation shall pay as compensation to the shareholders a sum of eight rupees and sixty-nine paisa for each share of the face value of ten rupees. The said compensation shall be in full and final settlement of claims of the shareholders.

3. The Fauji Foundation shail take over the liability for repayment of the loan of ninety lakhs rupees and the interest accrued thereon till the 30th December, 1971, obtained by the promoters from the Welfare and Rehabilitation Directorate, General Headquarters, Pakistan Army : ' Provided that the Fauji Foundation shall be entitled to set of the said loan of ninety lakhs rupees and the interest accrued thereon against-

(a) the compensation payable under sub-paragraph (2) to the promoters and their family and the Managing Agents; and

(b) the moneys advanced in any form by the Managing Agents to the Company including the money advanced for the issue of debentures : Provided further that the shareholders, other than the promoters, their family and the Managing Agents, shall receive their due compensation arferred to in sub-paragraph (2).

3. Nothing hereing contained shall preclude the Fauji Foundation from taking action for recovery of moneys of the Company misapplied, lost or misappropriated against any Director, Managing Agents, Officersor any person responsible for such misapplication, loss or misappropialion.

154. (Sd.) Zulfikar Ali Bhutto, H. Pk. President and Chief Martial Law Administrator, Rawalpindi, the 20th April, 1972."

155. ' The Order in question is the creature of the impugned Regulation. It has no legs of its own to stand upon. It has, inter alia, been challenged on the ground that it was ill motivated and issued mala fide, for the same reasons on which the Regulation has been attacked.

156. ' Firstly, the Regulation having been declared void the impugned order automatically falls to the ground. The reasons for holding the Regulation void have already been discussed in detatil and, therefore, on the parity of reasoning the impughed order is also declared void ab initio.

157. ' The impugned order, however, even when looked at independently cannot be sustained for several reasons. The text of the order has already been earlier reproduced hereinabove.

158. ' It was contended on behalf of the respondents that the impugned order was also an independent legislative instrument. It was so stated on the ground that the same had been described as such, with a capital "0", in the Notification of 20th April, 1972. However, if treated as a legislative instrument, the above contention can be summarily disposed of on the same grounds as have found favour for holding the impugned Regulation itself as void. As the attack to the Order is based on same grounds, a form the Order also must suffer the same fate.

159. ' The contention of the learned Cousel that the Order also amounted to a legislative instrument, even otherwise, does not stand the test of scrutiny on its examination. The Order itself proclaims as under:- "In exercise of powers confered by paragraph 2 of Martial Law Regulation No, 103, the President and Chief Martial Law Administrator is pleased to make the following order to determine the terms and conditions of the transfer referred to in that paragraph, namely:-

1. In this Order, unless there is anyting repugnant in the subject or context, Family of promoters" means father, sister, husband, sons and daughters of any of the promoters.

160. ' From the above it is clear, and requires no argument, that the Order itself speaks of having been issued in exercise of power conferred by paragraph of the impugned Regulation. Any deliberate misdescription cannot make oh x Order a legislative instrument. The impugned Order, therefore, does no stand to qualify as a legislative instrument, independent of the Regulation.

161. ' Mr. Mohammad All Saeed, learnd counsel for the petitioner contended that on 20th April, 1972, on which date the impugned Order was issued, Martial Law had already been withdrawn and such withdrawal had taken effect instantly after the midnight of 19th April, 1972 The proclamation withdrawing Martial Law, which appears at page 624 of PLD 1972 Central Statutes Part, mentions that it was made by the President and Chief Martial Law Administrator on the 20th April, 1972. It was stated that the Proclamation withdrawing Martial Law as a law like other law; and in fact, all proclamations have been classified as law under Article 281 (1) of the Interim Constitution. It was, therefore, asserted that by reason of the Proclamation withdrawing the Martial Law on 20th April, 1972, the offices of the Chief Martial Law Administrator, the Martial Law Administrators and all other Martial Law Authorities. Appointed in pursuance of the earlier Proclamation dated 25th March, 1969, came to be abolished instantly after the midnight of 19th April, 1972. In the circumstances, no order under paragraph 2 of the Regulation could have been passed on 20th April, 1972, or in other words, the Order dated 20th April, 1972, did not exist at all.

162. ' Mr. Shah Jamil Alam and Mr. Sayeed A. Shaikh, learned counsel for the respondents, relied upon a Full Bench decision of this Court in Asad Ali v. Settlement and Claims Commissioner (1) in which it was held that the Provisional Constitution Order was re-enacted on the coming into force of the Interim Constitution and then repealed, and therefore, its earlier withdrawal by the Chief Martial Law Administrator lost its significance, and all proceedings pending in the Courts were saved by Article 295. In Aasd Ali's case, however, it was not pointed out that as a matter of fact by a Corrigendum published in an Extraordinary Gazette of Pakistan, dated 21st June, 1973, the date of the Proclamation of withdrawal of Martial Law had been corrected so as to read 21-4-72 instead of 20-4-1972. This controversy, however, has been set at rest by the Supreme Court in Mehreen Zaibun Nisa v. Land Commissioner (2) where at page 444 of the report the finding on a similar contention, which had earlier been repelled by the Lahore High Court, was affirmed relying upon the Corrigendum correcting the date with regard to the withdrawal of Martial Law as from 24-1-1974.

163. ' The dissolution of the Company was effected by the Regulation, which had come into force from 31-12-71' and on its own force the Rehmania Faui Sugar Mills was dissolved and transferred immediately to the Fauji Foundation, with all its rights, properties, assets, debts, liabilities and obligations. The power to determine the terms and conditions of transfer by the President, and the Chief Martial Law Administrator was reserved under paragraph 2 of the Regulation. The Regulation did not say anything further. However, the impugned Regulation would show that in paragraph 1 thereof, as many as five terms were defined. One of the definitions given therein is regarding a newly coined term, which is foreign to the Company Law, namely, " Family of Promoters". This definition has already been reproduced hereinabove.

164. ' By coining the above definition, only the father, sister husband, sons and daughters of the promoters were intended to be covered; and again by clause 6 of the same paragraph 1 the word "promoters" was defined to mean "Mr. Shamim-ur-Rehman and Begum Shamim Khatoon". In this way the order fell outside the scope of the Regulation itself and it was designed to achieve some ulterior object which was lost at the time of framing of the impugned Regulation. It is needless to say that this intention and design was anything but bona fide. There is yet another feature of the Order which goes to the very root of the Order and is sufficient to invalid date it. It is this; the Regulation was into in the Gazette Extraordinary, dated December 31,1971, and came into force at once. It said that the Company shall stand dissolved and all its assets etc. Stood transferred immediately to the Fauji Foundation. Paragraph 2 of the Order, however, unequivocally proclaims that the Fauji Foundation shall on and from the 30th day of December, 1971 be sole owners of the Company, and shall have the right to continue its business in the name of Fauji Sugar Mills, Khoski.

165. It would thus appear that, according to the impugned Order, the ownership of the Company was transferred to the Fauji Foundation with effect from 30th October, 1971, that is, one day earlier than the very parent law became effective. Indeed, the impugned Order was issued as late as 20th April, 1972, that is, about four months after the promulgation of the parent Regulation, and therefore, this flaw cannot be attributed to any oversight, if any was claimed. As the Order is an instrument involving forfeiture of the proprietary rights, it is to be construed strictly. The terms and conditions of transfer, having been laid down with effect from 30th December, 1971, when the parent Regulation itself was not in existence, its result remains to be considered.

166. ' The Regulation was a package formula comprising three composite actions:

(a) dissolution of the Company;

(b) transfer of the assets and liabilities of the company to the Fauji Foundation;

(c) determination of the terms and conditions of the transfer.

167. ' It was contended that if one of the above essentials failed, then the whole composite scheme also fell to the ground. Reliance was placed on the foot-note 'p' appearimg in Halsbury's Laws of England, Volume 8, page 196 where, with reference to a case, it has been mentioned that if a property was sold on the basis of evalutation to be made by a specified person, the evaluation being a condition precedent to the sale; if for any reasons the evaluation was not made, the contract was not enforceable.

168. ' In another aspect also the impugned Order travels beyond the Regu lation, and clearly so. There is no cavil that the loan of Rs, 90 laces was advanced by the Army Welfare Directorate to the petitioner and his mother, Begum Shamim Khatoon, under a contract of loane as an indepen dent transaction. Admittedly, it was not a transaction by or between the Company and the Army Welfare Directorate. According to paragraph 2 z the Regulation, the rights and liabilities of the dissolved Company alone were transferred to the Fauji Foundation. It was not mentioned, much less intended by the Regulation, that a private contract entered into between the petitioner and his mother, on the one hand, and the Army Welfare Direc torate, on the other hand, was also within the scope of the Regulation. Indeed, it was not so,. However, vide paragraph 2 (3) of the impugned Order it was provided that the "Fauji Foundation shall take over the liability for repayment of the loan of Rs, 90 lacs and the interest accrued thereon till 30th December, 1971 obtained by promoters from the Welfare an Rehabilitation Directorate, and in order to achive this purpose, an artificial definition, as mentioned earlier, was coined in order to define the composite words "Family of promoters". This was clearly beyond the scope of the Regulation and fell outside the scope of paragraph 2 thereof. This, in my humble opinion, also illustrates that the impugned Order was per se mala fide.

169. ' As to the allegation of mala fide, it was further stated that under paragraph 2 (3) of the Order, the Fauji Foundation was charged with the responsibility of taking over the liability for the repayment of the loan of Rs, 90 lacs and interest accrued thereon till 30th December, 1971. The proviso to the said paragraph states that the Fauji Foundation shall be entitled to set off the said loan and the interest accrued thereon against:-

(a) the compensation payable under sub-paragraph (2) to the promoters and their family and the Managing Agents; and

(b) the moneys advanced in any form by the Managing Agents to the Company, including the money advanced for the issue of debentures.

170. ' The second proviso to the same paragraph further mentions that the shareholders, other than the promoters, their family and the Managing Agents, shall receive their due compensation referred to in sub-paragraph (2). It was contended by the learned counsel, and rightly so, that a clear cut distinction was drawn in the treatment meted out to the promoters, their family members and the Managing Agents (that is the petitioner's group) and the shareholders; while the latter were entitled to receive their due compensation without any risk of the said compesation being adjusted against loans due by them, the promoters were however, to have their compensation money adjusted set off against the loan of Rs, 90 lacs borrowed by them from the Directorate. It was asserted that the impugned Order in this manner was only designed to serve the interest of the welfare and Rehabilitation Directorate and not the others who had advanced much larger sums to the Company, and that too without any murmur, much less any complaint on their behalf. If this was not mala fide then what else can be called mala fide?

171. ' Lastly, it was contended by the learned counsel that the Order was passed without giving any opportunity of hearing to the promoters, their family, and Managing Agents and other shareholders. Accordingly insofar as the Order vitally affected the vested interest of the promoters and the shareholders, in the matter of fixation of the compensation, it militated against the principles of natural justice. No pretence was made that the impugned order was passed as an emergent measure, and indeed it was passed after four months of the promulgation of the Regulation itself.

172. ' Paragraph 2 of the Regulation mentioned that the President and the Chief Martial Law Administrator was to subsequently determine the terms and conditions of transfer to the Fauji Foundation. The term "determine" connotes an enquiry and adjudication which is a quasi-judicial, if not entirely a judicial matter. The word "determine" was interpreted by the Supreme Court in Abdullah Mohamed Peer Muhammad v. Karachi Municipal Corporation (1) and it was held that the word "determine" connotes adjudication and could not be sequated with a private treaty. In Jas want Sugar Mills Ltd. v. Lakshmi Chand and others (2) the expresstion "determination" was held to signify an effective expression of opinion which ends a controversy or a dispute by some authority to whom it was submitted under a valid lawful disposal.

173. ' It clearly follows from the use of the word "determine" in paragraph of the Regulation that such determination ought to have been made by some process of examination; and inasmuch as the compensation was to be pad to the affected persons, they had a vested right to be heard. It is an accepted principle of law that if the statute does not specifically exclude the right of hearing, the same is to be presumed in every enactment, even thougth it may be of an executive character.

174. Authorities indeed are not wanting is this behalf. In Pir Shah Mardan Shah v. Chief Land Commissioner (3) which was a matter under the Land Reforms Regulation, it was held that it is well

(1) PLD 1971 SC 130 (2) AIR 1963 SC 677

(3) PLD 1974 Kar. 375 settled that the principles of natural justice are to be read as part and parcel of every statute. As page 392 of the report this is what the learned Bench had to say with regard to the orders passed without hearing: "An order held void in law by virtue of Principles of natural justice is nonetheless void than the one held void as an act done corum non judice or without jurisdiction or mala fide. A void order is no order in law, it does not exist, and it need not be set aside because law does not recognize its existence. If an act done corum non judice or mala fide is void, to the same effect is an act which violates the principles of natural justice. All these being zeros in law, I cannot persuade myself to distinguish one zero from the other. If an order is held as void on the ground of violation of Principles of natural justice, it does not exist in law. What has no existence cannot be sustained in the purported exercise of power under the Regulations, for the exercise itself was a futility. In view of this clear position, we find no escape from the conclusion that imugned orders passed in these cases do not fall within the protection granted by clause (2) of Article 281 of Interim Constitution."

175. ' Similarly, in Saeed Ahmed Shah v. Commissioner (1) it was held by the Lahore High Cout that principle of natural justice, requiring person proceeded against to be given reasonable opportunity of being heard, is to be read into every law, including Martial Law instructions unless shown to be specifically dispensed with. This Principle has been repeatedly affirmed by the Supreme Court in Dina Sohrab Katrak (2), Faridsons v. Government of Pakistan (3), Abdul Rehman v. Collector of Bahawalpur (4), Abul Ala Mandoodi v. Government of Pakistan (5) and in the University of Dacca v.

176. Zakir Ahmed (6). It has been observed by the English Courts that even proceedings exposing a person to a legal hazard also call for the observance of the Principles of natural justice even if those proceedings did not terminate in any binding decision [(1970) 3 A E R 5:51. In that case it was laid down that it was not necessary to label the proceedings 'judicial', 'quasi-judicial', 'administrative' or 'investigatory' because it is the characteristic of the proceedings that matter, not the precise compartment or compartments into which they fall, In Ridge v. Baldwan (7) it was held that a decision given without hearing was void and not merely voidable. The significance of this case has been referred to by H. R. R. Wade in 'Administrative Law, 4th Edition,' and the following passage at page 477 may be quoted advantageously: "Ridge v. Baldwin brought with it a rash of conflicting opinions about whether failure to give a fair hearing rendered the dismissal of the Chief constable void or voidable. In the long history of the cases on natural justice as applied to administrative action this question had never before been agitated, for the simple reason that the logic of the situation excluded it. It had always previously been held a that breach of the rules of natural justice resulted in the determination being null and void, in the same way as any other act which was ultra vires. For the duty to act fairly, just like the duty to act reasonably, was enforced as an implied statutory requirement, so that

(1) PLD 1978 Lah. 1355 (2) PLD 1959 SC (Pak.)

(3) PLD 1961 SC 537 (4)PLD 1964SC461

(5) PLD 1964 SC 673 (6) PLD 1965 SC

(7) (1953) 2 A E R 66 failure to observe it meant that the administrative act or decision was outside the statutory power, unjustified by law, and therefore ultra other basis on which the Court could intervenue. The majority of rarely spelled out in judgment. As explained already, there was no vires and void. This assumption was so well understood that it was the House of Lords in Ridge v. Baldwn decided entirely consistently with this hypothesis, holding expressly that the Chief constable's dismissal was void."

177. ' In Anisminic Limited v. The Foreign Compensation Commission and another (1) it was held by Lord Morris that by the use of the words "determination by the Commission", in section 4 (4) of the Foreign Compensation Act, 1950, the Parliament had meant a real determination and not a purported determination. The was further said by him that on the assumption, however, that, therefore, the word "determination" was ambiguous, the latter meaning would accord with a long established line of cases which adopted that construction. For the foregoing reasons, I am of the opinion that even if it be assumed that the impugned Order was a valid Order, the action taken thereunder determining the compensation arbitrarily at Rs, 8.50 per share, payable to the shareholders in full and final settlement of the claims, was VOID having been determined without giving any hearing to the petitioner. On the face of it, the impugned order also does not mention as to what exercise had been undertaken for the determination of such illusory compensation if it can be called by that term, and such arbitrary fixation of compensation can be called no compensation in the eye of law.

13. Finally, it was contended on behalf of the second respondent alone, that inasmuch as the Company already stood transferred to them who had run the same and discharged its liabilities, the case was one of closed and past transaction, and the attack was to be saved. This contention sound hollow because no vested rights can be claimed on the basis of void instrument. The consequence of the direction that the impugned Regulation an the Order were mala fide and void, is, that the second respondent right from the inception had acquired no interest in the Company, much less any vested interest. Their position becomes outright unauthorised and it is the demand of justice, equity and good conscience that the manifest wrong must be undone.

178. ' Additionally, the plea of past and closed transaction is not sustainable on facts, As mentioned earlier, the Fauji Foundation, respondent 2 herein, is still chasing the petitioner and his father with the impugned Regulation F in their hand and pursuing their action on the strength of the self same instruments.

179. ' The wrong is a continuing wrong and the petitioner has a continuing cause of action.

14. The judgment will not be complete without saying a few words by way of parting compliments.

180. Mr. Mohd. Ali Saeed and Mr. Sayeed A. Shaikh, learned counsel for the parties, presented their respective cases with learning, industry and characteristic thoroughness, and, indeed, rendered valuable assistance for the resolution of the tangled problems involved in this case. Mr. Shah Jamil the then learned Duputy Attorney-General, needs special mention for his candour, brief and upright arguments.

15. In view of the foreoging dusission, and the conclusions reached hereinabove, the petition is allowed, and as a consequence of the declaration

(t) (1969) 1 A E R 208 that the impugned Regulation and the Order are void .Ab initio, the Company, Rehamania Fauji Sugar Mills Limited forthwith stands restored to its incorporated status from the date of the promulgation of the impugned Regulations, and all orders, made, action taken or suffered by or under the authority or purported authority of the impugned Regulation and the Order also stand declared null and void and of no legal effect. As a further consequence to the above, all rights, properties, assets, debts, liabilities and obligations of the Company, so re-instated, shall automatically stand vested in the Company and/or its promoters and shareholders who shall not be deemed to have been divested of their interest by virtue of the impugned Regulation and the Order, subject, however, to just and independent accounting by or on behalf of the second respondent. The respodent shall also bear the costs of the petition.

181. ' ABDUL HAFEEZ MEMON, J. I agree.