' AFTAB HUSSAIN, C. J.-On the 20th June, 1982 the review was allowed and the following order was passed :- "For reasons to be recorded, this petition is allowed, the order of this Court passed on 21st of March, 1981 is recalled. The result is that the petitions of the respondents shall stand dismissed. No orders as to costs."
2. I may now give the reasons which prompted me to pass the above order.
3. On the 21st of March, 1981 this Court by a majority of for to one accepted Shariat Petition No, 59/L of 1979 and Shariat Petition No, 62/L of 1979 and declared that the provisions of sentence of Rajin as Hald in sections 5 and 6 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, are repugnant to the Injunctions of Islam and that the only Hald is one hundred stripes. A direction was given for the amendment of the above-noted sections in the light of this declaration. The Chairman and two Members of the Court were of the view that Itajm' was not a sentence for the offence of adultery. I, however, held that though it was not a Hald but it can be added in the Ordinance as a Tazir sentence since the Holy Prophet, and after him his companions had been passing the sentence upon married persons committing adultery. One Member (the late Mr. Karimullah Durrani) however, differed and held the sentence to be a Hald.
4. The Federal Government filed an appeal against the judgment before the Supreme Court of Pakistan and the Court was pleased to stay the operation of the said order. Later on by Article 3 of the President's Order V of 1981 known as the Constitution (Amendment) Order, 1981, sub-Article (9) was added to Article 203-E of the Constitution by which the power of review of its decision was conferred upon the Court. This provision which became effective with effect from the 13th of April, 1981 is as follow : "The Court shall have power to review any decision given or order made by it."
5. The Federation of Pakistan filed the present petition for review on the 14th of July, 1981 to challenge the said Judgment and Order, notwithstanding the pendency of the appeal before the Supreme Court.
6. At the time of hearing of the petition two points were raised suo motu by the Court in respect of maintainability of the petition. The first was about the aptness of the exercise of the review jurisdiction by this Court despite pendency of an appeal against the same impugned order in the Supreme Court. The 2nd question was that in view of the Stay Order, by which the operation of the impugned order was suspended, there was no order in the field which can be reviewed.
7. The review petition was admitted to a regular hearing on the 8th of December, 1981 but these questions were left open for consideration.
8. On the first question the learned counsel submitted that the Supreme Court had no objection to the hearing and disposal of the review petition. He stated that an application had been made by the petitioner for adjournment of the appeal on ground of pendency of this petition before this Court and as the Supreme Court was pleased to adjourn the appeal on this ground, it would amount to an implied consent of that Court to the hearing of this review petition by this Court. On the second question he submitted that only that part of the impugned order had been stayed which directs the Government to amend the law and as such the other portion of the order including the declaratory portion remained in the field. In support of this assertion he placed before us the application for stay submitted by the Government before the Supreme Court, and the order passed on it.
9. We are satisfied that grant of adjournment of the appeal pending this petition amounts to an implied consent of that Court to the hearing 0 the review petition.
10. We have gone through the petition for the stay. It appears that the application was necessitated on account of this Court's direction to amend the Ordinance by the 31st of July, 1981. It was, therefore, stated in para. 6 of the stay petition that the implementation of this Court's order was necessary to be suspended. The Supreme Court passed the following order on this petition :- "The operation of the impugned order is stayed till the decision of this appeal."
11. We are satisfied that the Supreme Court had stayed only the operation of that part of the order which called upon the Government to amend the law in implementation of the decision of this Court. What was thus stayed was the executable part of the order. The rest of the order remained in the field and can be reviewed.
12. Mr. Shaming Abbas Bokhari raised certain preliminary objections in relation to the review jurisdiction of this Court which are reproduced below :-
(1) The amendment in the Constitution by which power of review was conferred upon this Court was made by Presidential Order No, 5 of 1981 but such power can be exercised only by the Chief Martial Law Administrator and not by the President. The amendment is not, therefore, competently made and is not a part of the Constitution.
(2) The President's Order No, 5 was enforced on the 13th April, 1981 with effect from that date ; it could not be effective for review of an order passed before the 'enforcement of the President's Order and as such the order dated 21st of March, 1981 passed in this case cannot be reviewed. This could be done only if the power of review had been retrospectively conferred upon this Court.
(3) The settled principle is that review cannot be equated with re-hearing of a matter or exercise of appellate jurisdiction and in any case in view of the principles laid down in Order XLVII, rule 1, C. P. C.
And Supreme Court Rules applying Order XLVII, rule 1 to review proceedings before it, it is not competent for this Court to go into the merits of the matter.
(4) The review petition is time-barred since it was filed on the 15th July, 1981 after if months of the passing of the order under review. Rule 31(d) of this Court provides for a limitation period of 90 days only.
13. The second and third preliminary objections were also raised by Mr. M. I. Chaudhry, Respondent who also argued the matter.
14. The learned counsel submitted on the first point that President's Order No. 1 of 1980 by which this Court was constituted was enforced on the 27th of May, 1980 adding Chapter 3-A including Article 203-A to 203-1 c ttiq Constitution. Subsequently this Order was validated by Article 15 of C. M. L. A.
Order No. 1 of 1981 (Provisional Constitution Order, 1981). The C. M; L. A. Order retained out of the Constitution of 1973 a number of Articles including Articles 203-A, 203-B, 203 (1) (2) (5) to (9), 203-D to 203-J. Thereafter C. M. L. A. Order No, 2 of 1981 (Provisional Constitution (Amendment) Order, 1981) was enforced with effect from 8th April, 1981 and was given retrospective effect from the 24th of March, 1981. The Articles retained by section 2 of C. M. L. A. Order No. 1 of 1981 were also retained by this second Order. On the 13th April, 1981 President's Order No, 5 of 1981 known as the Constitution (Amendment) Order, 1981 was enforced by which Article 203-CC was added to authorise the President to appoint Ulema Members ; and sub-Article 9 was added to Article 203-E conferring the review powers upon the Court. By C. M. L. A. Order No, 3 of 1981 known as The Provisional Constitution (Second Amendment) Order, 1981 enforced on the 25th April, 1981 only Article 203-CC was provided to be retained but no such provision was made about the newly-added sub-Article 9 of Article 203-E. The result is that C. M. L. A. Order No, 3 of 1981 did not validate sub-Article 9 of Article 203-E.
15. The learned counsel relied upon the case of Mrs. Murat Bhutto (1 at 715 and 716 and submitted that the power of amending the Constitution C vested in the C. M. L. A. Only and as such the President's Order No, 5 could not have force unless validated by an Order passed by the C. M. L. A.
16. This argument is without force in view of the specific provisions in Article 16 in C. M. L. A. Order No. 1 of 1981 which authorises the C. M. L. A. As well as the President to amend the Constitution. This provision is a complete answer to the argument of the learned counsel.
17. The learned counsel, however, argued that this is contrary to the dictum laid down by the Supreme Court in the case referred to above, since the C. M. L. A. Has no authority to confer this power upon the President. To meet this argument it would be necessary to make a review of the various provisions of C. M. L. A. Order No. 1 of 1977 known as the Laws (Continuance in Force) Order, 1977, as well as the observations made by the Supreme Court in the above case.
18. The Laws (Continuance in Force) Order, 1977 put in abeyance the Constitution but in its. Article 2 added a provision for carrying on the Government of the country in accordance with the provisions of the Constitution of 1973 subject to any Order passed by the President or any Regulation issued by the C. M. L. A. In Article 5 a provision was added for continuance of laws other than the Constitution subject to the power inter alia of the President to amend or vary them.
19. It will be clear from these provisions that though the Constitution was in abeyance, the Government had to be run in accordance with it though the President could also make an order to the contrary and similarly the C. M. L. A. Could make a Regulation to the contrary. The power of the President, to act contrarily was no doubt subject to the advice of the C. M. L. A. (Vide Article 3). The provisions in Article 5 were in regard to laws other than the Constitution but that power was also subject to any order of the President or Regulation made by the C. M. L. A. The power to amend the Constitution, therefore, vested not only in the C. M. L. A. But also in the President though the latter was bound to act on and in accordance with the advice of the C. M. L. A. {{FOOTNOTE}}
(1) PLD 1977 SC 657
20. The effect of this portion of the Order was maintained by the Supreme Court of Pakistan in the above case (pp. 715, 716) as will be clear from the following powers conferred inter alia for amendment of the Cons. Tuition "As a result, the true position which therefore, emerges is :-
(1) ..........................
(if) .........................
(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 Ordered running of the State ; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purposed of restoration of democratic institutions under the 1973 Constitution ;
(iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require ; (v)
From this quotation it would be evident that all acts including legislative' measures to amend the Constitution could inter alia be performed by means of Presidential Order as provided in the Laws Continuance in Force Order, E 1977. It will not be, therefore, correct to say that the Constitution cannot be amended except by an order issued by the C M. L A.
21. The learned counsel emphasized that if it was so, it was unnecessary to issue C. M. L. A. Orders Nos. 1, 2 and 3 of 1981. This argument is also without force. The second and third Orders are in the nature of amendment of the first Order but the objective with which the first order was issued by the C. M. L. A. Is given in its preamble. It is to the following effect :- "And whereas the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No 1 of 1977), was also made by the Chief Martial Law Administrator on the same day and doubts have arisen as to the effect of the said Order as regards the powers and jurisdiction of the superior Courts thereunder ; "And whereas the Chief Martial Law Administrated is satisfied that it is necessary to make adequate interim provisions for governing Pakistan in accordance with the provisions contained in this Order and for the removal of doubts and for consolidating and declaring the Law, and for effectively meeting the threat to the integrity and sovereignty of Pakistan and its Islamic Ideology.
"Now, therefore, in pursuance of 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 :--"
22. The object of this legislation shows that it has virtually the same, effect as Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977). It was considered necessary to issue it to resolve doubts as to the effect of C. M. L. A. Order No. 1 of 1977 and for consolidating and declaring the law in this respect. C. M. L. A. Order No. 1 of 1981 is not merely for amendment of the Constitution but its main objective is to clarify the position arising out of the doubts created in regard to C. M. L. A.
Order No. 1 of 1977. This is inter alio done by providing in Article 16 that the President as well as the C.
M. L. A. Shall have and shall be deemed always to have had the powers to amend the Constitution.
23. On the question of retrospectively, the learned counsel relied upon the date on which the Presidential Order is said to have come into force. He submitted that this excluded the possibility of review of any order passed before the date of enforcement.
24. The language of sub-Article 9 of Article 203-E reproduced above however allows the Court to review any decision given or order made by it. There is nothing in this sub-Article which may be treated as creating an embargo on the review of any order existing on the 13th of April, 1981 rather existing on the mid-night of 12th and 13th of April, 1981 when the Presidential Order came into force.
Clearly, therefore, the language of the sub-Article contemplates review of orders passed before the conferment of the power of review. This is supported by the cases of Sahib Rai v. Custodian of Evacuee Property, Karachi (1) and Mr. B. A. Sheikh v, Custodian of Evacuee Property, West Pakistan and others (2).
25. In the second case the same question arose whether the Custodian could review an order passed before the coming into force of Ordinance 15 of 1949, section 36(5) of which allowed the Custodian to review his order. It was held that the Custodian had such a jurisdiction. Reliance for this was placed upon the first case of Sahib Rai. This is sufficient answer to the argument of the learned counsel. The argument against retrospectively is, therefore, not correct.
26. The argument of the learned counsel on points Nos. 3 and 4 is based upon the Supreme Court Rules and provisions of Order XLVII, C. P. C. Which place an embargo upon the exercise of review jurisdiction in a case where an appeal has been filed. These provisions are not applicable to the exercise of Review Jurisdiction by this. Court and cannot cut down the plenary Review Jurisdiction of this Court which is wider than the jurisdiction of the Supreme Court.
27. Article 188 of the Constitution provides for exercise of review jurisdiction by the Supreme Court but that power is subject to the provision of any Act of Parliament or any Rules made by the Supreme Court. The Act of Parliament or the Supreme Court Rules can, therefore, restrict the exercise of power and restrictions have been placed on the exercise of that wider power by rules framed by the Supreme Court. But the jurisdiction of this Court cannot be curtailed either by Rules or by the Act of Parliament. The Supreme Court restricted its power of review by Rules to the grounds {{FOOTNOTE}}
(1) PLD 1957 SC 73 (2) PLD 1960 SC (Pak.) 330