GUL MUHAMMAD KHAN, J.-The petitioner was convicted and sentenced to 14 years R. I. Under section 31(d) of the Pakistan Army Act by a Field General Court Martial on 13th February, 1981. He challenges the said order through the present writ petition.
2. To begin with the learned counsel raised a proposition to the efect that with the subsistence of 1973 Constitution, neither could the Provisional Constitution Order, 1981, be issued nor would the Chief Martial Law Administrator, an Army Officer under oath, to defend the Constitution of 1973, give such a Provisional Constitution in its supersession. He further stated that in any case the Chief Martial Law Administrator himself who was bound by the Proclamation of the fifth day of July, 1977, as interpreted by the Supreme Court in Nusrat Bhutto's case could not violate laws made by him and restrict or limit the powers of the superior Courts.
3. It, is further contended that the petitioner being a retired Army Officer was not subject to.
Pakistan Army Act in view of section 2(Ixd) of the said Act. The evidence led, against him, it was alleged, being that he had conspired with others to overthrow the Government did not bring his case within the charge. The Constitution of the Board was also challenged under section 84(b) read with rules 13, 148, 26 and para. 106 of Chapter IV of Manual of Pakistan Military Law, Volume 1.
4.. It is to be noted that the, present regime derives its existence and has in fact been claiming its validity on the basis of the Proclamation of the Fifth Day of July, 1977. The declaration made by the Supreme Court in Nusrat Bhutto's cave, and its 'acceptance by the regime for ail that long ,leaves no manner of doubt that it is an extra-Constitutional sot up necessitated by the circumstances which eroded the moral and constitutional authority of the regime of Mr. Bhutto. Both the aspects find their recognition further in the preamble of the Provisional Constitution Order, 1981. Another purpose now added is that there is threat to the integrity arid sovereignty of Pakistan. The President of Pakistan in his speeches its record in the Pakistan Times, dated 29th March and 9th April, 1981, reported that situation with an assurance that the 1973 Constitution is in tact. The mention of certain articles specifically in Article 2 of the Provisional Constitution Order, 1981, appears to be only for clear demarcation of what is in abeyance and what is in force out of it. The promulgation of the President's Order 5 of 1981, inserting Article 203-CC in the Constitution and addition of sub-Article
(9) to Article 203-E. Supports that position further.
5. The Provisional Constitution Order, on the other hand, Appear to be a misnomer. It is not a compact, self-contained constitutional document. The Order that derives its existence, strength and validity from the judicially recognised Proclamation of the Fifth Day of July,1977, road with Laws (Continuance in Force) Order, 1977, cannot be of a superior or a higher status than its ancestors.
The need to make this Order is embodied in paras. 5 to 7 of the preamble itself. It is stipulated therein that it was essential to make it as an interim administrative norm to remove doubts as regard the powers and jurisdiction of the superior Courts and for consolidating and declaring laws for effectively meeting threat to integrity and soveriegnty of Pakistan and its Islamic Ideology. It does not go a step further to add any other essential norm to it.
6. Article 1 of the Order gives it a name. Article 2 as it was at the time of its making, mentioned all those Articles of the 1973 Constitution in abeyance, which were to form part of this Order. It is, however, interesting to note that it omitted to include Article 41 (making provision for a President as Head of the State) and Article 101 (for appointment of a Governor, for each Province) though it retained Article I describing Pakistan as a Federal Republic with Provinces, Article 3 provides for one or more Vice-Presidents while Article 4 is for a Majlis-e-Shura. Articles 5 to 11 concern constitution of various superior Courts, and their powers and jurisdiction. The power and jurisdiction conferred on the High Court under Article 9 is precise the same as was available to the Court after incorporating changes brought in by 4th and 5th amendments of the Constitution. Article 13 saves orders of retirement of civil servants passed on their completing 25 years service, from the jurisdiction of the superior Courts and the Service Tribunals. Article 14 concerns formation and activities of political parties. Article 15(1) validates the Proclamation of the Fifth Day of July, 1977, all President's Orders, Orders of the Chief Martial Law Administrator, including Orders amending the Constitution made by the President or the Chief Martial Law Administrator, Martial Law Orders and all laws made on or after the Fiffth Day of July, 1977.
7. All this shows that all laws made prior to 1977 are continued not under the Provisional Constitution Order, 1981, but by the Laws (Continuance in Force) Order, 1977. Article 15(2) validates all executions, orders, proceedings, sentences etc. Notwithstanding any judgment of any Court. It is provided in both the sub-Articles that none of their contents shall be called in question in any Court on any ground whatever. The transactions past and closed are, however, not subject to the above restrictions.
8. Article 16 reserves power to the Chief Martial Law Administrator to amend the Constitution. In fact this power has since been exercised by adding Article 203-CC., If the Constitution is said to be incomplete abeyance why this power should have been retained ? Article 17 is about oath office before the President or his nominee in the case of Supreme Court and Federal Shariat Court Judges and Governor or his nominee in case of High Court Judges. As noted both these offices were not created in the Provisional Constitution Order. Article 18 empowers the Chief Martial Law Administrator to remove difficulties. .
9. It cannot be denied that any political system in any civilised State must have at least three pillars, i.e. Legislature, executive and judiciary to support its superstructure. The perusal of the Provisional Constitution Order, 1981, however, shows that it provides mainly for judicial power.
Articles 90 and 129 vesting the executive authority respectively in the Federal and Provincial Governments have not been incorporated in it. We have already stated that there was no provision for a President and the Governor in the incorporated Articles of the Constitution mentioned above, though the Provisional Constitution Order does mention some of their function. The taxation and Ordinance making legislative power, both for the Federal and Provincial set up, as embodied in Articles 77, 78, 11% 79, 119, 80, 120 and 86 and 126 of the Constitution have not been included in the Provisional Constitution Order. Thus the other two pillars are missing and one has to look round to locate any other instrument providing for the same, so as to give it completeness and sense. Again, the laws made prior to the Fifth Day of July, 1977, ought to have been continued under it if it was an interim Constitution.
10. The Proclamation of the Fifth Day of July, 1977, read with C..M. L. A. Order 1 of 1977, on the other hand, supplies a complete answer to the omissions. The Proclamation lays down a scheme of interim Government while the C. M. L. A., Order gives its details. Further, as is clear from its last para. Of the Preamble, the Provisional Constitution Order derives its life, strength and validity from the Proclamation and the C. M. L. A. Order 1 of 1977. It reads as under : "Now, therefore, in pursuance to the Proclamation of the Fifth Day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make the following order:". '
11. It is, therefore, quite clear that the Provisional Constitution Order is just another Order of the C. M.
L. A., made in exercise of the powers conferred on him by Article 2 of the C. M. L. A. Order I of 1977. It does not lay down or give a new legal order. We, therefore, do not agree with the learned counsel that the C. M. L. A. Has given an alternate Constitution in the Provisional Constitution Order, 1981, or in any way upset the Proclamation of the Fifth Day of July, 1977, or its purpose.
12. In view of our finding that the Provisional Constitution Order is only another C. M. L. A. Order issued in exercise of the Proclamation and the Laws (Continuance in Force) Order, 1977, and that it is not at all an alternate or parallel Constitution, we do not think that the other objection of the learned counsel, about amendment of the Constitution or interference with the power or jurisdiction of the superior Courts, has any force. The learned counsel had specifically referred to a portion at page 715 of the report of Nusrat Bhutto's case which is as under "As a result, the true legal position which, therefore, emerges is :-
(i) That the 1973 Constitution still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of State necessity ;
(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogate from this position, as the Courts had been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Martial Law ; The Supreme Court further, Inter alia, concluded at page 716 as under "(iii) That the Chief Martial Law Administrator having validly assumed power by means of an extra- Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely :
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it ;
(b) All acts which tend to advance or promote the good of the people ;
(c) All acts required to be done for the ordinary orderly running of the State ; and (Underlining' is by us)
14. The report then embodies the conclusions at pages 721-?2, to the following effect :-
(i) imposition of Martial Law stands validated on the doctrine of State necessity ;
(ii) Constitution still remains the supreme law though certain parts are held in abeyance; under State necessity ;
(ill) the power of judicial review may be exercised notwithstanding anything contained contrary to it in any Martial Law Regulation, Order or Ordinance:.
15. The rule laid down by the Supreme Court thus is that though the power under Article 199 remains intact yet the C. M. L. A. Is empowered to amend the Constitution.
16. The next question that logically arises is, to what extent can the. C. M. L. A., amend the Constitutional provisions ? Can he in this process also curtail the Constitutional powers of the High Courts under Article 199 and disturb the terms and conditions of Judges ? To appreciate this legal aspect we shall have to refer to at least two enactments affecting the Constitution, as made by the new, regime, prior to the judgment of Begum Nusrat Bhutto. The first is C. M. L. A. Order 6 of 1977. By it an explanation was added to Article 2(1) in Laws (Continuance in Force) Order, 1977, as under : "Explanation.-In this Order the term 'Constitution' shall be so construed as if Articles 179, 195 and 199 of the Constitution had not been amended by. Any of the Acts amending it."
Article 8 of the above Order was also amended by adding to it the following"Provided that the incumbent of any office who would have retired from office-in the absence of an amendment of the Constitution shall cease to hold office forthwith."
16-A. In consequence of it the then Chief Justice of Pakistan had to retire immediately. The amendments trade by the Parliament in Article 195, about the terms and conditions of the Chief Justice and Judges of the Honourable High Court under the Fifth Amendment came to an end and stood recalled. It is to be noted that the effect of what the Parliament had enacted by way of 5th Amendment, so far as it concerned the powers of the High Courts, was substantially the same as is of Article 9. Of the Provisional Constitution Order. It means that the Supreme Court did recognise the power of the C. M. L. A., to amend, not only Article 199, but other Articles concerning the terms and conditions of the Judges of the superior Courts under the Constitution also. Apparently, none of the two actions was permissible, even during emergency, under proviso to Article 232(2) (c) and could not be brought in the ambit of the doctrine of necessity. What the C. M. L. A., has now done is to practically withdraw his own C. M. L. A. Order 6 restoring substantially the same position as it obtained before imposition of Martial Law.
17. The other noted amendment is the High Court Judges (Scrutiny of Appointments) Order, 1977 (P.
P. O. 13). It was enforced on 30th October, 1977, with retrospective effect from 5th July, 1977. By this Order the appointment of Additional Judges of the High Courts was to be scrutinised and they would cease to hold office if the same fell within its ambit. Consequently the appointments made by a valid authority were sent for scrutiny to the Supreme Judicial Council of Pakistan though this was not one of its functions under Article 209 of the Constitution. This situation also could not be said to be covered by any 'necessity'.
18. It is, therefore, quite .Clear that the Supreme Court as well as the Supreme Judicial Council did approve of the power of the C. M. L. A. To amend Article 199 and also other Articles concerning the terms and conditions of the Superior Judiciary. What he has done now in the Provisional Constitution Order is to restore practically the pre-Martial Law position. The effect of Provisional Constitution Order as regards the powers of the High Courts and terms and conditions of the superior Judiciary is only t relegate the two to substantially the same position as it was after the 5t Amendment to the Constitution enacted by the Parliament. The nee question then is that if the C.
M. L. A., could amend the Constitution, to remove the effect of 5th Amendment, why cannot he withdraw his own enactment, even if its effect is to curtail the powers of the High Courts ? It is a well established principle of interpretation of law that one who can legislate can as well repeal and validate. So if there was no defect in the C. M. L. A. Order 6 there will be no defect in the Provisional Constitution order so far as it is covered by the above principle. As the Supreme Court itself stood constituted under C. M. L. A. Order 6, while deciding Nusrat Bhutto's case it shall also be deemed to have approved the C. M. L. A. Order 6 and President's (Post Proclamation) Order No. 13 of 1977.
19. It will be noted that Article 189 of the Constitution has been in force before, as well as after the Provisional Constitution Order. The provisions of this Article bind this Court to follow the principles of law enunciated by the Supreme Court in Nusrat Bhutto's case. Therein the Supreme Court conceded to the C. M. L. A., the power to amend the Constitution. We have also determined above its extent which the SupremeCourt shall be deemed to have noticed and approved it. The Provisional Constitution Order thus cannot be said to be in excess or ultra vires the power of the Chief Martial Law Administrator.
20. Again, it has to be borne in mind that the Courts as such ha never been pleased with more powers or dismayed if they are insufficient as it is not a judicial but purely a political consideration.
The function o the Courts is to decide the disputes between the parties or redress the grievances in accordance with law. The Judges, it is well established, have never criticised any law on the ground that it is harsh or unjust and never refused to administer any law for the reason that it does not provide just or full relief. Both good or bad laws have to be administered as they are and the Courts would neither add to nor subtract from them.
21. The above position may be supported from certain concrete examples. Till the incorporation of section 223-A to the Government of India Act, 1935, on 16th July, 1954, no power of judicial review was available to the superior Courts. On promulgation of Martial Law of 1958, no action was taken and no Judge protested when the Constitutional rights of the people and the powers of the Courts were taken away on the abrogation of 1956 Constitution. Rather, the action was condoned. Even on the promulgation of 1962 Constitution, which did not include Fundamental Rights. The judicial looks did not betray a frown or ferocity. The same was the position on the imposition of the Martial Law of 1969, resulting in abrogation of 1962 Constitution. Even in the judgment of Asma Jillani case (PLD1972SG139) the powers of the Courts under the constitutions of 1956 or 1962 were not restored though General Muhammad Yahya Khan was held to be a usurper. On the passing of the 5th Amendment to the 1973 Constitution, the powers of the Courts under Article 199 were reduced to the same position as it is today under Article 9 of the Provisional Constitution Order. No annoyance was displayed by the judiciary in any form though there was no Martial Law in the country then.
Again no bitterness prevailed with the Judges when the 1973 Constitution was kept in abeyance and powers of the Courts curtailed. It may be noted that Nusrat' Bhutto case (supra) came about four months later. The short answer is that the Judges are themselves creation of law and they are rightly indifferent' as to the state of law which is a pure political question concerning the Legislature.
22. The petitioner has been convicted by a Military Court. I he question whether the offence was under the general law, under a Martial La v Regulation or Order, will not make much difference as, even the ordinary cases, can be transferred to be tried by the Military Courts. However, in view of Article 15(2) of the Provisional Constitution Order, the impugned order cannot be called in question on any ground and in fact this petition shall abate in view of Article 15(3).