SHAH ABDUR RASHID, J.-In the Gazette, Extraordinary of N.-W. F. P., on the first February, 1972, the following publication appeared :- "MARTIAL LAW ORDER No. 47 Under the orders of the Chief Martial Law Administrator and in exercise of the powers confined by Martial Law Regulation No. 1 as recons--tituted by Martial Law Regulation No. 64 and as amended from time to time, I, Hayat Muhammad Sherpao, Martial Law Administrator Zone `F' hereby order that notwithstanding any title, right, claim or interest of any kind of any person, or any provision of any law for the time being in force, the shops specified in Column 2 of the Schedule to this order, shall with immediate effect, vest in and become the property of the respective occupants thereof, without payment of any consideration or compensation.
(Sd.)
Martial Law Administrator, Zone `F Peshawar 18th January, 1972 Authentication Wazir Khan Malik, Lieutenant-Colonel for Martial Law Administrator Zone 'F'.
" Peshawar 22nd January 1972.
This was followed by a list of 237 shops all beloging to the petitioners Nawabzada Muhammad Umar Khan etc. The result of this publication was that the occupants of these shops claimed ownership thereof and denied title of the petitioners. On 15-6-1974 the present writ petition was filed in this Court under Article 199 of the 1973 Constitution praying that the aforesaid order made by the Zonal Martial Law Administrator Zone 'F', purporting to divest the petitioners of their title to properties as mentioned in the Schedule attached to the order, be declared as without lawful authority and of no legal effect. The petition was argued for a number of days before us. Sardar Mohammad 1qbal, Advocate represented the petitioners while Khawaja Nazir Ahmad, Advocate argued the case on behalf of the Federal Government. The case of the Provincial Government was argued by Mr. Bashirullah Khan, Assistant Advocate-General.
2. During the pendency of the petition, besides the Federal Government and the North-West Frontier Provinces, numerous persons who claimed title to the Properties on the basis of impugned publication, applied for being impleaded as parties. Their prayer was accepted and they have been repre--sented before us by Mr. Zahoorul Haq, Advocate.
3. The Assistant Advocate-General, Mr. Bashirullah Khan, who appeared for the Provincial Government raised a preliminary objection that after the passing of the Provisional Constitution Order, 1981 (C. M. L. A. Order No. 1 of 1981), the Courts, constituting the Judges who took oath under that Order, have no powers of judicial review and that in this respect they can neither determine their own jurisdiction nor can they strike down any order which is, or purports to be, a Martial Law Order. In this regard the learned Assistant Advocate-General has referred to clause (5) of Article 15 of the said Order which, inter alia provides that notwithstanding any judg--ment of any Court, including any judgment in respect of the powers of Courts relating to the judicial review, no Court shall make any order to the validity of effect of any Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator.
4. As far the judicial powers of the superior Courts to determine its own jurisdiction is concerned, the matter is set at rest by the Supreme Court in the case of State v. Zia-ur-Rehman (PLD 1973 SC 49) wherein Justice Hamoodur Rehman observed as follows :- The Supreme Court . ---------------------------------------------------.Does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.
This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is a Superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It follows from the fact that it is x Constitutional Court and it can only be taken away by abolishing the Court itself."
Coming to the jurisdiction of the Court to examine the vires of the impugned publication, it may be pointed out that the bar placed by clause (5) of Article 15 of the Order obviously refers to Martial Law Regulation and Martial Law Orders made after the 5th day of July 1977, by the present regime and it has nothing to do with the Martial Law Regulations or Orders made during the regime of General Yahya or Mr. Bhutto. This is obvious when clause (5) (ibid) is read along with clause (1) of Article 15 which validates the legislative measures taken by the present regime. The preliminary objection raised by the learned Assistant Advocate-General is thus without any substance.
5. The learned counsel appearing for the petitioner raised a new point during the course of arguments although it had not been taken up in the petition itself. When the original Martial Law Order No. 47 made by the Zonal Martial Law Administrator was produced in Court, it transpired that the list of shops appended thereto did not bear the signature of the Martial Law Administrator. The learned counsel contends that since the list which has been named as Schedule in the body of the main Order has not been signed, it does not form part of the publication and, therefore, even if M. L.
O. No. 47 is validated by the Interim Constitution of 1972 or the Constitution of 1973, it has not deprived the petitioner of their ownership in the particular shops. This belated question cannot be entertained because seeing the original Gazette Notification, it is evident that even there, the signature of the Martial Law Administrator did not appear below the list nor the list was headed as Schedule. However since the list has appeared in the Gazette Notification, it shall have to be read as a part of the Notification notwithstanding the absence of signature of Martial Law Administrator thereon. Section 81 of the Evidence Act of 1872 raises an unrebuttable presumption in respect of the genuineness of a Gazette Notification and in our opinion no evidence to the contrary can be taken into consideration. We are, therefore unable to agree with the learned counsel for the petitioner that the list appended to the body of Martial Law Order No. 47 is not a part thereof and that it does not prima facie divest the petitioners of their right in the property.
6. The learned counsel appearing for the petitioners has argued that the impugned publication was issued during the period when the 1962 Constitution had been abrogated and new Constitution had not been enacted and that the said period being the period when there was a state of negation of law, the laws and orders made during it are null and void and could either be condoned by the Courts on the principle laid down in the case of Asma Jilani v. The Punjab Government (PLD 1972 SC 139) or they could be validated by the duly elected representatives of the people who framed the Interim Constitution of 1972-and permanent Constitution of 1973.
7. In Asma Jillani's case HamRehman, J. At page 207 of the report said that he would condone.-
(1) all transactions which are past and closed for no useful purpose can be served by reopening 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,
(3) 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 establish--ment of, the objectives mentioned in the objectives Resolution of 1954.
The learned Judge also observed that he would not condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. He further observed that he would also not condone anything which seriously impairs the rights of the citizens except in so far as it may be designed to advance the social welfare and national solidarity.
8. Sardar Muhammad Iqbal has argued that the impugned publication could not be condoned by the Courts firstly because it impairs the rights of the citizens of Pakistan and secondly because it is violative of Article 2 of the 1962 Constitution and could not be made because of the bar placed therein.
9. Mr. Zahoorul Haq, Advocate has argued that the law laid down in Asma Jillani's case refers to the period when General Yahya was in power and that the impugned publication, having been made during the period of Mr. Bhutto, who was the chosen representative of the people, did not need condonation by the Courts or further validation by the Legislature. His argument was that Mr. Bhutto, unlike General Yahya was not a usurper but was duly elected representative of the majority of the people who voted him to power and therefore his voice was the voice of the people and any law and order made by him could not be questioned on any ground whatsoever by the Courts.
10. No doubt in the case of Asma Jillani Hamoodur Rehman, J. Has specifically pointed out that the decision therein had nothing whatsoever to do with the validity of the regime of Mr. Bhutto, nevertheless in no way the majority decision gave unfettered power to Mr. Bhutto to do whatsoever he liked, disregarding the norms of law.
11. It may be pointed out that during the period when the impugned publication appeared, the National Assembly had not framed the 1972 Cons--titution nor it had validated the actions taken by General Yahya and Mr. Bhutto. In fact in Asma Jillani's case Yaqub Ali, J. Himself indirectly ruled out the view that a law can be made by an individual in a democratic State. His observations on the specific point is that- "the will of the people is now-a-days often expressed through the medium of Legislature comprising of the chosen representatives of the peoples ; the will of a single man howsoever laudable or sorded is a behest or a command but is certainly not law as understood in juristic sense."
The law-making in a democratic State is not the function of one individual. It is of the chosen representatives, who after meeting together, by majority make law. It cannot therefore be said that the publication which has been impugned in this petition is immune from judicial scrutiny even if it has not been validated by the National Assembly.
12. As already observed, the impugned publication, besides being con--trary to Article 2 of the 1962 Constitution also impairs the rights of individuals and, therefore, it has no legal force. However, if it stands validated by any provision of the 1972 or of 1973 Constitution, its vires shall not be open to challenge.
13. Article 281 of the 1972 Constitution by clause (1) validates all legislative measures taken by General Yahya and Mr. Bhutto during the period when Martial Law was in force. Clause (2) of the said Article gives validation to the orders made, proceedings taken and acts done or purported to have been done under any law including a Martial Law Order during the aforesaid period. Similarly clause (1) of Article 269 of the 1973 Constitution validates all legislative measures taken by Mr. Bhutto when he was the Chief Martial Law Administrator. Clause (2) of that Article further validates the orders made and the proceedings taken and acts done or purported to have been done under any legislative measure during the periods when General Yahya and Mr. Bhutto were holding the office of the Chief Martial Law Adminis--trator. Thus if the impugned publication is a Martial Law Order and legislative measure then it stands validated not only by Article 281 of the 1972 Constitution but also by Article 269 of the 1973 Constitution. If it is an order (and not law) and it is established that it had been made under any validated legislation, then it shall stand validated under clause (2) of Article 281 of the 1972 Constitution and also under clause (2) of Article 26 of the 1973 Constitution.
14. The learned counsel for the petitioners however, contended that the impugned publication is not a legislative measure and thus it is not validated by clause (1) of Article 281 of the 1972 Constitution or clause (1) of Article 269 of 1973 Constitution. He has further argued that even if it as intended to be a legislative measure, this is not what is known as "law" in the juristic sense and, as such, the National Assembly shall be deemed not to have accorded validation thereto. Again it was argued that even if it was considered to be a law as known in the jurisprudence this is a bad law having been enacted mala fide by Mr. Bhutto who bore ill-will towards the whole family of the petitioners, a member of which had opposed his party in the general election. Further it was argued that if it is an order purporting to have made under a Martial Law Regulation or a Martial Law Order, it is not validated under Article 281 (2) of the 1972 Constitution or, clause (2), Article 269 of the 1973 Constitution because no Martial Law Regulation or Martial Law Order authorised the Martial Law Administrator to make an order depriving any person of his property without compensation. It was also argued that the Martial Law Administrator could not make any law depriving a person of his property inasmuch as such an order would be contrary to the Land Acquisition Act which is an existing law and the Martial Law Administrator had never been given power under any supra-Constitutional legislation to legislate in such a manner as to nullify the affect of an existing law.
15. Sardar Muhammad Iqbal, while arguing the case for the petitioners, referred to certain cases wherein the Courts have explained as to what was the method adopted by the Martial Law Authorities for enacting legislation during their regimes. He particularly pointed out that whenever an order was intended to be a legislative measure, the word "Order" was expressed with capital `O' and not with small 'O'. While referring to the impugned publication he pointed out that the orders of the Chief Martial Law Adminis--trator clearly shows that the impugned publication was not a law but an executive order of Mr. Bhutto which has been given a particular form by the Zonal Martial Law Administrator.
16. It is not necessary to refer to the cases cited at the bar because in our opinion, apart from the method adopted for legislation, we have to consider the publication by its own words. Herein the impugned publication would show that the Zonal Martial Law Administration received an order or direction from the Chief Martial Law Administrator to take the property in dispute from the owners and give it to the respective occupants. The order of the Chief Martial Law Administrator was executive but an attempt has been made by the Zonal Martial Law Administrator to give it a legislative guise. The Zonal Martial Law Administrator has invoked the provisions of Martial Law Regulation No. 1 as reconstituted by Martial Law Regulation No. 64 but neither of these two Regulations gives the Zonal Martial Law Administrator power to take the proper of one person and give it to another person. Thus considering from this angle, the impugned publicationis not a legislative measure which has been validated under Article 281 (1) of the 1972 Constitution or Article 269(1) of the 1973 Constitution. The Martial Law Administrator of the Zone bad attempted to give effect to the order of the Chief Martial Law Administrator which obviously is an executive order verbally made for the learned counsel for the Federal Government has frankly admitted that no written order of the Chief Martial Law Administrator in this respect was available. The property is thus acquired under a verbal order of the Chief Martial Law Administrator and it is to be seen whether such an order stand validated under the Constitution.
17. Article 28-1 (2) of the 1972 constitution and Article. 269(2) of the 1973 Constitution validate only such orders as are passed in exercise of the powers derived from any President's, order, Martial Law Regulations,, Orders, enactments, Notifications, Rules,, Orders or bye-laws. In other words, these provisions protect only those orders which have been made under the authority of an instrument which is a legislative measure. These provisions do not protect the verbal order which cannot be passed under any legislation. Since the impugned publication, in our opinion, is not authorised by any legislative enactment it was never validated and, therefore, the petitioner cannot be considered to have been divested of the disputed property.
18. Even if the impugned publication is considered to be a law made by the Chief Martial Law Administrator and published under his authority by the Zonal Martial Law Administrator, it is not a law which the Legislature ever intended to validate. Protection extends only to the legislative measures and the legislative measures are those laws which made by a competent authority. The Chief Martial Law Administrator in our opinion, could not make a law of the nature which has been captioned as "Martial Law Order No. 47". The publication offends Article 2 of the 1962 Constitution and was, therefore, ultra vires ab initio because the Chief Martial Law Administrator had no jurisdiction to enact a law depriving the individuals of their property without public purpose and without compensation and giving the same to other persons.
19. It was argued on behalf of the respondents that since the Constitu--tion has validated the Martial Law Order, the impugned publication, if it is a Martial Law Order, shall not be open to question in spite of the fact that it offended the provisions of Article 2 of 1962 Constitution. It has, however, to be seen that there are certain limitations which cannot be trespassed even by the supreme body like a Constitution making Legislature. Justice Monir in his Constitution of the Islamic Republic of Pakistan in its Introduction at page 5 has observed as follows :- "But although a Constitution may protect individual rights, such rights do not have their origin and foundation in such instrument. A Constitu--tion is not the beginning of a community ; nor does it originate and create institution of Government. Instead, it assumes the existence of an established system which is still to continue in force, and is based on pre-existing rights, laws and modes of thoughts. A written Constitution sanctifies and confirms general principles ; it does not bring them into existence. Thus a Constitution is not the cause but a consequence of personal and political freedom."
20. In no civilized system the property of an individual can be taken over and given to another persons. If any law is intended for that purpose that will not be valid even if it has the Constitutional protection. The principle of "eminent domain" is so basic that no Legislature can revoke that. An American Jurisprudence on the subject of Eminent Domain" says as follows :- "Nevertheless, while the Courts have not been in agreement on the precise meaning of the term "public use", it has been held, without a single dissenting voice, that the State does not have power to authorize the taking of the property of an individual without his consent for the private use of another, even on the payment of full compensa--tion. At first, when it was not fully realized that Constitutions were limitations, not grants, of power and when some Courts claimed the right to set aside act of the Legislature on the ground that they were opposed to natural justice even if they violated no provision of the Constitution, it was often intimated or half that an act authorising the exercise of eminent domain for private purposes was beyond the power of the Legislature because it was robbery, not legislation, and the Legislature had been granted only the power to enact legislation, or because it violated the universally recognized principles of justice. Moreover it is declared, the taking of private property for private use without the consent of the owner is contrary to the fundamental principles of a Republican Government. The modern doctrine is that a taking for private uses is forbidden by implication by the constitu--tional provision especially applicable to eminent domain ; and while implied prohibitions in the Constitutions of the States are not favoured, the rule against taking of private uses is so firmly established that it cannot reasonably be subjected to analysis in the light of mere canons of construction, and it is now well settled that the prohibition against the taking of property for public use without just compensation impliedly, but definitely, forbids taking of property for private uses. The prohibition against deprivation of property without due process of law which, in identical or equivalent terms, is found in most of the State Constitutions is also a safeguard against takings for private purposes, but it is not often invoked, as the more specific clause is sufficient. If for any reason the latter is not available, the due process clause comes into play."
21. Again if the impugned publication is a legislation, it is an immoral) law and, as such, cannot be protected. Compared in his Book on the Interpretation of Statutes has observed as follows "No Court, for instance would hesitate to declare void a state which enacted A and B, who were husband and wife to each other should no longer be but that A should thereafter be the husband of C and B the wife of D, or which should enact that the homestead now owner by A should no longer be his but should thenceforth be the property of 'B'."
The property of one person cannot in law be acquired except for Stat purposes. This is the principle of eminent domain which as already observed cannot be trespassed even by the supreme legislative body. The Indian Constitution, while enacting that the property of an individual shall not be acquired without compensation, presupposed in Article 31(1) that the property is to be acquired for public purpose. In the present case, since the property has not been acquired for any public purpose and has been given from one person to another, it is not a law in the sense in which the term is known to the jurisprudence and the National Assembly shall not be deemed to have validated such a piracy.
22. The impugned publication, besides being bad law or no law, is a sentence or punishment which is beyond the jurisdiction of a legislative body. Punishment can be inflicted by the judiciary which is one of the three limbs of the State and not by the Legislature or the executive. Even the judiciary cannot inflict punishment without giving reasonable opportunity to the L effected person of explaining his position. This principle of natural justice that no man shall be condemned unheard is so embedded in the Roman and the Anglo-Saxon Law and the Islamic Jurisprudence that it has been held by Courts that in every enactment, unless the contrary intention is expressed, this rule shall be deemed to have been enacted.
23. Again a law which affects only one set of individuals without making a reasonable distinction cannot be termed as `Law'. Law is a body of rules effecting the entire class of subjects of State or a section thereof. If It cannot be made solely for one person or one family. The present publica--tion affects the property of the petitioners only and the order shows that in the same vicinity and Bazar the shops of other owners are left out. The publication is thus so restricted that it does not apply even to the whole of Bazar. This, by no sense, qualifies to be termed as law or legislative measure.
The Supreme Court of India in the case of Smt. Indira Gandhi v. Raj Narain (AIR 1975 SC 538) struck down even the Constitutional amendment inter alia on the ground that it was to benefit only one person and was not of general application. Similar view has been taken by the Lahore High Court in the case of Naseer Ahmad v. Province of West Pakistan (PLD 1980 Lah. 684). In the case of Young v.
Sun Alliance 8c London Insurance Ltd.. ((1976) 3 All E R 561) it was observed,:-- "There is one thing worth mentioning that law is a rule of general application and not for one solitary phenomenon------------..a particular act of Legislature to confiscate goods of Titius or to attain him of high treason does not enter into the field of Municipal law for the opera--tion of this act is spent on Titius only, and has no relation to community in general, it is rather a sentence than a law------------------------"
24. It was then argued on behalf of the petitioners that irrespective of the fact whether the impugned publication is a law, or an order made under a law or an executive order otherwise valid, it is invalidated on account of mala fide, as the author thereof, the then C. M. L. A. Mr. Bhutto, bore grudge against the petitioners' family. The learned counsel for the petitioners pointed out that Colonel Amir Muhammad Khan Hoti one of the petitioners was a candidate for the Mardan seat of the National Assembly which contested on the Muslim League Ticket against a candidate of People's Party headed by Mr. Bhutto as Chairman. That during the election campaign on 25th day of February, 1970, Mr. Bhutto addressed a public meeting in the constituency and during the speech he condemned Colonel Amir Muhammad Khan's person by saying that when Mr. Bhutto was a Minister in the Ayub Government he sanctioned a Paper Mills in his name for which Colonel Amir Muhammad Khan thanked him and told him that he would remain loyal for ever to him. According to the learned counsel, Mr. Bhutto further stated that however when he ceased to be the Minister, Colonel Amir Muhammad Khan tried to ignore him when they once confronted each other in a hotel. In that very speech Mr. Bhutto is stated to have waived his hand and promised that if he came into power all the shops belonging to the petitioner's family would be taken from them and handed over within on month to the occupants. The learned counsel urged that in order to satisfy his ego and the so-called promise, impugned publication was issued exact by the end of the month. It was pointed out that in spite of the fact that there were shops of others people also in the same Bazar, the owners thereof were not touched and only the petitioner's shops were confiscated in this respect reports from the newspapers have been filed. None of the respondents specifically denied the allegations and in fact, except the Federal Government no written statement was filed either by the Provincial Government or by the beneficiaries of the publication. We are, therefore, inclined to agree with the learned counsel for the petitioners that such a speech was made and Mr. Bhutto wanted to give effect to his promise when he directed the Zonal Martial Law Administrator to take over the shops of the petitioners and give them to the occupants thereof.
25. The learned Assistant Advocate-General appearing for the Provincial Government has argued that the mala fide is alleged against Mr. Bhutto only and that since the impugned order was passed by Hayat Muhammad Sherpao, the Zonal Martial Law Administrator, the publication cannot be struck down on ground of mala fide, for the said Martial Law Administrator did not bear any grudge against the petitioners nor the petitioners have alleged that hi action was malicious. No doubt, the order is signed by Hayat Muhammad Khan Sherpao, nevertheless the wordings of the order show that it was passed on the specific verbal direction of Mr. Bhutto. It is futile to argue that if mala fide on the part of Mr. Bhutto is proved it would also be necessary to prove mala fide on the part of the Zonal Martial Law Administrator as well.
26. Mr. Zahoorul Haq has argued that Mr. Bhutto merely fulfilled his promise which he declared in the election campaign and, therefore, this act itself cannot be said to be mala fide as it conformed with the social programme of his party. We are not impressed by this argument because the programme, if it was to be carried out, could not be directed against one individual or one family.
There is nothing to show that all the owners of large mansions and big properties such as these shops were divestee by any order of the then Chief Martial Law Administrator. The expression of Mr. Bhutto in the meeting against one of the petitioners and his subsequent action prima facie constitutes malice in fact.
27. Even if malice in fact is not established, the action is clearly malicious in law. As observed in Corpus Juris Secundum, Volume 54, under, the heading `Malice', the word `malice' in its legal sense means a wrongful act done intentionally without just cause or excuse. It is a wanton disposition grossly negligent of the rights of others. It is disposition to do the wrongful act greatly injurious to another. It is wilful violation of a known right and conscious violation of the lawful rights of another to his prejudice. Taking the property of one person and giving it to others is obviously a malicious) act in law even if the element of malice in fact is wanting. We, therefore' find no hesitation in holding that the impugned Notification was tainted with malice.
28. The learned counsel who appeared for the respondents have urged that since the National Assembly has validated the impugned order, the question of going into the bona fide of the author thereof is irrelevant. This question had come up before the Supreme Court in the case of Ziaur Rehman v. State (PLD 1973 SC 49) and also in the case Government of Pakistan v. Saeed Ahmad (PLD 1974 SC 151) and in both these cases it was held that the validity sought to be conferred under Article 281 of the Interim Constitution did not extend to acts done, orders made or proceedings taken without jurisdiction, coram non judice of mala fide.
29. Mr. Zahoorul Haq then argued that since the publication captioned "Martial Law Order No. 47" is a law, it cannot be struck down on ground of being mala fide. No doubt it has been observed in many cases by the superior Courts that malice cannot be impugned in law-making body but in our opinion this observation does not extend to the law made by one individual. The principle that malice cannot be attributed to the Legislature is based on the fact that it is too much to say that each member of a Legislative body could act mala fide when voting for a law. Whenever some law is framed by an individual, the principle that malice could not be attributed to Legislature would not be attracted.
30. In view of the above fact, we, therefore hold that the impugned publication being, mala fide on fact as well as in law is void and of no legal effect.
31. Lastly, the question which remains to be disposed of is that of laches. The impugned order was passed on 18th January, 1972, whereas the present petition was filed on 15-6-1974, more than two years thereafter, Ostensibly the petition was belated one but none of the respondents raised the question of ]aches. The Court had itself, while admitting the petition, observed that the question of ]aches be taken and considered at the time of arguments. The learned counsel for the petitioners contended that after the impugned publication, the petitioners had sought at an interview with Mr,.
Bhutto through the good offices of a common friend Khan Sher Afzal Khan and Mr. Bhutto had assured that the wrong done to the petitioners would be undone. In support of this averment, Nawabzada Muhammad Amir Khan one of the petitioners swore an affidavit. An affidavit of Khan Sher Afzal Khan was also placed on file but it remained unattested in the; U formal manner. It was explained, during the arguments, Khan Sher Afzal Khan died before he could appear before the Registrar of this Court for the attestation of the affidavit. However, Mr. Abdul Aziz Khan, an Advocate certified that the affidavit was signed by Sher Afzal Khan personally in his presence. Even if this evidence is not taken into consideration, the affidavit: of the petitioner which stands unrebutted establishes that an approach was made by the petitioner for the removal of their grievance and Mr. Bhutto had promised to undo the wrong. In these circumstances, therefore, it was natural for the petitioners to wait for the result of the promise instead of approaching the Court immediately.
The delay in filing this petition on this ground is, therefore, condonable.
31. Even if in the present case there was any delay in filing the petition we do not think that this delay would put the petitioners out of the Court on the principle that a suitor trust seek the remedy at the earliest opportunity if he wants the High Court to exercise its discretionary powers under Article 199 of the Constitution. There is no limitation on the discretion of the Court in regard to the exercise of that power and it is for the Court itself to determine the limit in the circumstances of each case. No hard and fast rule can be laid down as to what in particular circumstance could constitute laches. In the present case, besides the attempts which the petitioners were making out of Court, the state of affairs then existing ha also to be taken into consideration. The delay alone is not sufficient to non suit the petitioners. It is the delay coupled with other conduct of a petitioner amounting to estoppel that would amount to uncodonable laches. In Mohsin Khan v. Chief Settlement Commissioner (1969 SCMR 306) it was observed that mere delay is not by itself sufficient ground for non-suiting a party in a proceeding; where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due negligence it would be a good ground for denying the extraordinary remedy.
32. Besides the above fact there can be no laches when an order passed without jurisdiction is challenged for such an order is void ab initio and does not exist in the eye of law. In Farquharson v.
Morgan ((1894)1 Q B 522) the Court went to the extent of saying that where total absence of jurisdiction appears on the face of the proceedings in an inferior Court, the Court is bound to issue prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. In Salahuddin v. Revenue Commissioner (PLD 1971. Quetta 61) the question of laches was disposed of in the following words :- "Mr. Ansari last contended that the petitioner should not be heard challenging the jurisdiction of the Assistant Commissioner, Quetta, as he had caused considerable delay in challenging his jurisdiction. We are unable to agree with him. An order passed or action set taken without jurisdiction remains as such until set aside and therefore, it deserves to be struck down at any time when it comes to the notice of the Court through an aggrieved party. The affix of the time is unable to improve the status of an illegal order. Moreover, there being no hard and fast rules in relation to time for challenging such orders through writ petitions it would amount to perpetuating an illegality if a petition was dismissed only on the ground of ]aches in such situation and particularly when the delay is not alarming."
In Mst. Zainab Bibi v. Commissioner (PLD 1976 Lah. 820) it was held that where an action is challenged on the ground of mala fide the question of laches was irrelevant. There are many cases in which it is held that discretionary power should not be exercised when a suit on the same cause of action would be barred by time. In other words, when an action is otherwise within time the Court would not hesitate from exercising discretionary jurisdiction to give relief to an aggrieved party effected by a void order. In Fazlul Qadar Chowdhery v. Muhammad Abdul Haque (PLD 1963 SC 486), it was observed that there could be no estoppel against the Constitution and that an act which is unconstitution cannot become constitutional by lapse of time nor it can vest any one with any kind of legal right to benefit from such an unconstitutional act. In Mirajud Din v. Senior Superintendent of Police, Lahore District (PLD 1970 Lah. 569) it was observed as follows :- "However, in our view, it is not necessary to embark upon that enquiry because the impugned order is in the nature of a continuing wrong. Therefore, a cause of action in respect thereof arose continuously. Even if there would have been a bar of statutory limitation, the petitioner could have urged the plea of continuous wrong. But in this case there being no statutory limitation under Article 98 of the Constitution the objection as to laches ; with regard to which the same plea, of continuous wrong, can legitimately be urged by the petitioner ... ..........
33. To sum up the above observations we are of the view that firstly there is no intentional delay on the part of the petitioners to approach this Court for they were making efforts to get the wrong remedied by Mr. Bhutto himself and secondly because the impugned order is void and constitutes continuing wrong which can be challenged any time and for challenging this order there is no limitation at all. The question of ]aches, therefore, dins not arise in the present case.
34. In view of our finding on different aspects of the case, we grant the petitioners declaration prayed for and hold that the impugned publication is void and of no legal effect.