1. NASIM HASAN SHAH, J.-This order will dispose of . C. P. No. 175/82,C. P. No. 184/82, C. P. No. 185/82, C.
2. P. No. 186/82, C. P. No. 187/82, C. P. No. 188/82, C. P. No. 189/82, C. P. No. 190/82, C. P. 191/82, C. P. No. 192/82, C. P, No. 193/82, C. P. No. 194/82, C. P. No. 195/82, C. P. 196/82, C. P. No. 197/82, C. P. No. 230/82, C. P. No. 231/82, C. P. No. 235/ 82, and C. P. No. 236/82, because a common point of law arises for determina--tion in all the aforesaid matters.
3. In pursuance of Martial Law Instruction No. 22, issued by the Martial Law Administrator, Zone-A, Lahore the appointment of the petitioners, in all the above-noted petitions, as. Depot Holders, was terminated on the recommendation of the Depot Allotment/Review Board constituted for scrutinizing whether the appointment of the petitioners in the afore-mentioned petitions, as well as some others, as Depot Holders, was regular or not? It was observed in the order terminating their appointment, however, that they were at liberty to apply for the allotment of a depot for which applica--tions were being invited separately. It was further mentioned therein that order aforesaid was issued after the concurrence of S. M. L. A. (Sub-Martial Law Administrator). The said order was issued on 2-10-1977.
4. The petitioner in Civil Petition for Special Leave to Appeal No. 175 of 1982, challenged this order by filing a writ petition in the Lahore High Court which was dismissed in limine on the ground that the record indicated that the depots were allotted by the District Magistrate subject to the confirmation of the District Allotment Committee which Committee had refused confirmation.
5. Consequently, he had no cause of action.
6. Dissatisfied with the above decision, the aforementioned petitioner (Muhammad Haroon) filed an Intra-Court Appeal which was dismissed by a Division Bench of the Lahore High Court on 3-12-1979 on the ground that it was incompetent in view of the proviso of subsection (2) of section 3 of the Law Reforms Ordinance, 1972. He then moved this Court (C. P. S. L. A. No. 1048/79) and the said petition was dismissed with the observation that the judgment of the Division Bench of the Lahore High Court holding the appeal before it was barred was quite correct as the petitioner could have filed the appeal to the Deputy Director (Food) under the law applicable to the matter.
7. Relying on this observation he thereafter filed an appeal before the Deputy Director, Food, Bahawalpur, which was dismissed on 6-7-1980 after a full consideration of his case on the merits.
8. This order was then again challenged by a Writ Petition No. 352/80/BWP' and came up for bearing with the writ petitions filed by the petitioners in all the other civil petitions mentioned in the title above, which had been filed by the said petitioners against the earlier order dated 2-10-1977 and were still pending adjudication. Tile writ petitions of 19 petitioners before us, alongwith 12 other writ petitions, were heard together by a learned Single Judge of the Lahore 4High Court at Bahawalpur and all of them were dismissed by a common order passed on 23-2-1982 on the ground that they were no longer competent in view of the provisions of Article 15 of the Provisional Constitu--tion Order, 1981. Hence these petitions for leave to appeal.
9. Mr. Dilawar Mahmood, learned counsel for the petitioner in C: P. No. 175 of 1982, submitted, in the first instance that Martial Law Instruction No. 22, which was issued on 12-8-1977, was cancelled by Martial Law Instruction No. 42 issued on 25-3-78 and the matter thereafter fell to be governed by Martial Law Order No. 30 entitled "Foodstuffs Distribution Order" issued by the Martial Law Administrator, Zone-A. According to the provisions thereof, it were the provisions of the West Pakistan Foodstuffs Distribution Order 1967, which became applicable and therefore the orders of cancellation of the petitioner's depot were not passed in exercise of the powers derived from any President's Order, Orders of the Chief Martial Law Administrator Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws and hence did not fall within the mischief of Article 15 of the Provisional Constitution Order, 1981.
10. Mr. Tanvir Ahmad, learned A. A. G. Who appeared to assist us in these matters, pointed out that the said Martial Law Order was not relevant and in this connection referred us to Paras. 3 and 4 of Martial Law Order No. 30, which are in the following terms:- "3, Notwithstanding anything contained in the West Pakistan Foodstuffs Distribution Order, 1967, the following persons shall be ineligible to apply for or be granted an authorisation under clause 4 of the said Order, namely:-
(a) Persons aged less than 18 years.
(b) Persons having a monthly income of Rs. 1,000 or more from any other source.
(c) Persons who have been convicted of any offence involving moral turpitude during the period of 10 years preceding the date of applica--tion for grant of authorisation. '
(d) Persons who already bold an authorisation in their own name or in the name of any of their relatives or have any interest in any form or manner in any authorisation anywhere in the same District; and
(e) Persons who have any of their relatives working in the Food Depart--ment of the same District.
11. Explanation.-The term `relative' for the purpose of this Order means wife, father, son, uncle, mother, brother, sister, nephew, niece father-in-law, mother-in-law, sister-in-law and brother-in-law.
4. All existing authorisations issued after the first day of July, 1972, to persons who suffered from any of the disqualifications mentioned in para. 1 of this Order, and all authorisations cancelled by a District Magistrate, District Food Controller or Rationing Controller, at any time after the fifth day of July, 1977, but before the promulgation of this Order, on the ground that the holders thereof suffered from any of the disqualifications mentioned in that paragraph, shall be deemed to have been cancelled under sub-clause (l) of clause (6) of the West Pakistan Foodstuffs Distribution Order, 1967."
12. His submission was that by virtue of Para. 4 quoted above, it was only the existing authorisations (issued after the first day of July, 1972,), to persons who suffered from any of the disqualifications mentioned in para. 3 of this Order which were to be deemed to have been cancelled under sub- clause (i) of clause 6 of the West Pakistan Foodstuffs Distribution Order 1967. Since the authorisation of the petitioner did not fall within the disqualification men--tioned in para. 3 of the said order, hence the said' Order was not relevant in the instant case. Mr. Dilawar Mahmood had no answer to this contention.
13. Mr. Tanvir Ahmad, learned A. A.-G. Further pointed out that Martial Law Instruction No. 22 was not cancelled until the issuance of Martial Law Instruction No. 42 which was issued on the 25th March, 1978, and the authorisation of the petitioner had been cancelled on 2-i0-1977; i. e. At a point of time when Martial Law Instruction No. 22 was still in force. Hence the only question was whether the action taken under Martial Law Instruction No. 22 fell within the purview of Article 15(2) of the Provisional Constitution Order, 1981.
14. It is true that the term of "Martial Law Instruction" has not been used in sub-article (li) of Article 15.
15. However, the contention of the learned A. A.-G. Is that "Martial Law Instruction No. 22" dated 12-8- 1977 has got the status of a "rule", which term is duly mentioned in sub-article (ii) of Article 15. In this connection reliance is placed on Khan Faizullah Khan v. Government of Pakistan and another (PLD1974SC291), wherein it was observed that even instructions contained in a memoranda issued by the appropriate Government can be deemed to be of the same status as statutory rules provided they are "expressed with precision and yet possess generality so as to be capable of application to large number of cases". The same view was expressed by this Court in Pakistan v.
16. Abdul Hamid (PLD 1961 SC 105), Province of West Pakistan v. Din Muhammad (PLD1964SC21), Government of West Pakistan v. A. A. Aziz (PLD 1966 SC 188)and Habibur Rehman v. West Pakistan Public Service Commission (PLD 1973-5- C 144). The copy of Martial Law Instruction No. 22 dated 12-8-1977 which has been placed before us shows that its provisions are, indeed, expressed with precision and yet possess generality so as to be capable of application to large number of cases.
17. Hence the said instruction can be regarded as rules and equated with them within the meaning of sub-article (ii) of Article 10 of the Provisional Constitution Order, 1981.
18. Faced with this difficulty Mr. Dilawar Mahmood contended that a perusal of para. 8 .Of Martial Law Instruction No. 22 showed that its terms also made the provisions of West Pakistan Foodstuffs Distribution Order, 1967 applicable in the matter of suspension or cancellation of authorisations.
19. Para. 8 is in the following terms:- "8. Cancellation of Depot.-In case of any irregularities,. Malpractices and other discrepancies observed in the operation of depots, action will be taken vide West Pakistan Foodstuffs, Distribution Order, 1967, under which District Magistrate, Deputy Directors Food or District Food Controllers may order suspension or cancellation of authorisation in writing giving a show-cause notice and also order forfeiture of security or any part thereof to the Government."
20. At first sight there appears to be some force in this contention of Mr. Dilawar Mahmood but a close look at the entire Martial Law Instruction No. 22 reveals that the contention is not correct. The Instruction on proper scrutiny shows that it is by itself a complete code and the mention of the District Magistrate, Deputy Director Food and District Food Controlled (who are also the relevant authorities for cancellation of authorisation under West Pakistan Foodstuffs Distribution Order, 1967) has not the effect of ipso facto making the West Pakistan Foodstuffs Distribution Order, 1967, to be applicable. In fact, the intention appears merely to utilize the said authorities, who .Are the experts in the relevant regard for enforcing the provisions of Martial Law Instruction No. 22 and securing its due implemen--tation. This becomes clear if reference is made to para. 9 of the Instruction which deals with appeals. This paragraph is in the following terms:- "9. Appeal for Restoration-Any person aggrieved of the above order may prefer an appeal within 30 days of the passing of such suspension or cancellation order to the authority superior -to the one who passed the said tinder. However, the Government at any time either `sue motu' or on an application made in this behalf reject the order of such authority, call for the record: relating to the above order pending before any authority as specified above for the purposes of satisfying itself as to the propriety or correctness of such order and pass such order as deemed fit. However; no such order shall be passed by the Government revising or modifying an order affecting any person without giving an opportunity to such person of being heard."
21. Thus, it is evident that the reference to the West Pakistan Foodstuffs Distribution Order, 1967, under which the District Magistrate, Deputy Directors of Food or District Food Controllers may order cancellation of authorisation does not have the effect of making the orders of cancellation passed by these authorities to be the orders passed under the West Pakistan Foodstuffs order, 1967, because if this was so it would not have been necessary to provide for appeals separately in para. 9 of the Martial Law Instruction in the presence of the existence of the provision for appeal in the Order. It is clear, therefore, that the said Instruction is a complete code on the subject and action taken by the authorities mentioned therein is to be construed to be action taken under the said Instruction, which, as already pointed out, is, in effect, a "rule" framed by a Martial Law Adminis-- trator. Hence action taken thereunder would fall under Article 15 of the Provisional Constitution Order, 1981, which provision ousts the jurisdiction of the High Court and this Court in such matters.
22. Thus, the order of the High Court impugned before us cannot be excepted to.
23. Rana Abdul Majid, learned counsel for the petitioners appearing in support of the remaining petitions submitted that he was neither challenging the validity of Martial Law Instruction No. 22 nor questioning the view '' that if action was taken thereunder it would be immune from challenge after the promulgation of the Provisional Constitution Order, 1981. His plea was that the provisions of Martial Law Instruction No. 22 had not been observed, while cancelling the depot of the petitioners, whom he was representing. In this connection, he submitted that in the case of Qazi Muhammad Ishaq (Petitioner .In C. P. S. L. A. No. 184/82) for instance the '~ said petitioner's authorisation was cancelled without hearing him, although para. 8 of Martial Law Order itself provides that the cancellation of the authorisation would be ordered only after giving a show-cause notice to the n persons effected.
24. The question whether a person was issued a show-cause notice before cancelling his authorisation or not is a question of fact; and insofar as action purports to have been taken under the said Martial Law Instruction No. 22 and shall be presumed that its provisions have been complied with. Moreso its validity is to be judged according to the tenor of the order and if it purports to be passed in pursuance of the said Martial Law Instruction it is immune from challenge.
25. However, if the petitioners felt aggrieved by the said order on the ground now urged before us they should have filed an appeal to the authority superior to one, who had passed the said order as' provided for under para. 9 of the Instruction, in the course of which the objection being taken before, us could have been scrutinised and investigated.
26. The upshot is that the dismissal by the High Court of these petitions on the ground that they fell within the mischief of Article 15 of the Provisional Constitution Order, 1981, cannot be objected to. All these petitions directed against the said order must, accordingly, fail and are dismissed hereby: