YAQOOB ALI vs PRESIDING OFFICER, SUMMARY MILITARY 'COURT, KARACHI

' ZAFFAR HUSSAIN MIRZA, J.-By the Constitution (Amendment) Order, 1980 the President has made the following amendments in Article 199 of the Constitution "In the Constitution, in Article 199, after clause (3), the following new clauses shall be inserted, namely :- (3-A) Notwithstanding any judgment of any Court, including any judgment in respect of the powers of Courts relating to judicial review, a High Court shall not, under this Article-

(a) make an order relating to the validity or effect of any Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder ;

(b) make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal ;

(c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal ; or

(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either.

(3-B) Every such order, injunction or process as is referred to in clause (3-A) made, granted or issued at any time before or after the commencement of the Constitution (Amendment) Order, 1980, shall, notwithstanding any judgment of any Court, be null and void, of no effect whatsoever and any proceedings for the making or granting or issue of such order, injunction or proceeding which may be pending before any Court, including the Supreme Court and a High Court, shall abate.

(3-C) The Proclamation of the fifth day of July, 1977, all President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders made on or after the fifth day of July, 1977 are hereby declared, notwithstanding any judgment of any Court, to have been validly made."

' In a pending Constitutional Petition a Division Bench of this Court consisting of my Lord the Acting Chief Justice and S. A. Nusrat, J., in view of the aforesaid constitutional amendments framed the following questions and ordered them to be referred to a Full Bench : "(1) Whether the amendments made by the Constitution (Amendment) Order of 1980, inserting clauses (3-A), (3-B) and (3-C) in Article 199 of the Constitution are valid, and

(2) Whether this Court has jurisdiction to hear petitions, whereby convictions, or, proceedings before Military Courts, including Summary Military Courts are challenged ?

2. However, when this Full Bench assembled to hear the case the questions were re-framed as under : "(1) Whether the power of this Court under Article 199 has been taken away in respect of cases arising out of or in relation to convictions, sentences and proceedings recorded, pending or taken by the Military Courts ?

(2) Whether the pending petitions in relation to the cases mentioned in question No, 1 have abated ?"

3. On behalf of the petitioners the leading argument was addressed by Mr. Khalid M. Ishaque and the other counsel who addressed arguments before us were Messrs. Abdul Hafeez Pirzada, G. H.

Abbasi, Kamal Azfar, S. A. Wadood, Shafi Mohammadi and Sabihuddin Ahmed. On behalf of the Federal Government Mr. A. A. Fazeel and on behalf of the Provincial Government the learned Advocate-General, Sind and for the Deputy Attorney-General to whom Court notice was ordered, Mr. S. Inayat Ali, Standing Counsel were present. It may be pointed out that the Division Bench had ordered notice to the Deputy Attorney-General, Advocate-General, Sind and Mr. A. A Fazed as amicta curiae. On the first date of hearing Mr. Fazeel, however, stated at the bar that he represents one of the parties in the petitions and expressed his inability on this account to argue the case as amicus curiae. Accordingly he was relieved of the obligation to act as the amicus curiae. After the conclusion of the arguments of the first two counsel on behalf of the petitioners the Court had called upon Mr. A. A. Fazeel to state the points on which he proposed to argue the case on behalf of the Federal Government. He submitted that as counsel for the Federal Government he has been instructed only to state that the petitions under consideration had automatically abated and nothing more. He, however, stated certain points of law which he was prepared to argue in his personal capacity and not as counsel for the Federal Government. To a pointed question from the Court whether he will answer any questions from the Court as counsel for the Federal Government he replied in the negative. Even to the question whether he will argue legal position as to how the petitions have abated, he declined to argue, whereupon he was put the proposition whether in his submission this Court did not have the jurisdiction even to consider the question as a question of law whether the petitions had abated, he replied : "It amounts to that". The learned Advocate- General and the learned Standing Counsel also adopted the same position. After considering the aforesaid statements, the Court, however, decided to dispose of the case after hearing the rest of the counsel for the petitioners by a proper judgment. Thus, the unfortunate position is that the Court was deprived of the assistance of the counsel appearing for the other side on the various questions of law raised in this case although the petitioners' case has been fully argued.

4. Now it will be seen from the language of the re-framed question No, 1 that the scope of this question is confined to the extent to which the power of this Court under Article 199 in relation to the judgments and sentences passed by Military Courts, has been taken away, whereas the question as originally framed embraced the entire of the , new amendments made in Article 199. During the course of hearing, again and again a question has been agitating my mind, whether it is possible to adequately answer the question as reframed without touching the larger issues that arise, if one looks upon the entire amending legislation relating to Article 199. After seriously considering the matter I find that even for the decision of the issue raised in question No, 1 as presently framed, it will be necessary to consider the effect of other provisions of the amendments at least to the extent it is unavoidable and relevant. The rule' is well-founded that the Constitution has to be construed like any other A document reading it as a whole and giving every part thereof a meaning consistent with the other provisions thereof vide State v. Zia-ur-Rahman (1).

5. It may at the very outset be pointed out that the special feature of this case, as far as it appears from the cases brought to our notice, is that it is the first case of its kind since the decision in Begum Nusrat Bhutto v. The Chief of Army Staff (2), in which validity of a direct amendment in the Constitution has been challenged. This case, therefore, raises fundamental questions of far- reaching public importance after that case.

6. On behalf of the petitioners the validity and vires of the amendments made in relation to the powers of this Court under Article 199 were 6 challenged on various grounds, but before considering this question it seem necessary to first examine the scope of the amendments. It will be seen

(1) PLD 1973 SC 49 (2) P D 1977 SC 657 that under clause (3-C) the Proclamation of 5th of July, 1977 and inter alia the legislative Order of the Chief Martial Law Administrator made on or after the aforesaid date have been declared, notwithstanding any judgment of any Court, to have been validly made. The effect of the provision would obviously, therefore, be to validate with retrospective effect by a constitutional provision the Laws (Continuance in Force) Order, 1977 (hereinafter referred to as C. M. L. A. Order No, 1 of 1977) in its pristine form as originally promulgated notwithstanding the judgment in the case of Begum Nusrat Bhutto. It, therefore, follows that by virtue of Article 2 of the aforesaid Order Pakistan shall be governed as nearly as may be in accordance with the Constitution subject, inter alia, to the said Order and any legislative Order made by the President and any Regulation made by the Chief Martial Law Administrator. Viewed in the aforesaid context it was submitted that in final analysis the entire administrative machinery of the Government in this country is being run under the Regulations made by the Chief Martial Law Administrator and, therefore, sub-clause (a) of clause (3-A) places outside the scope of Article 199 not only the validity or effect of Martial Law Regulations and Orders but of all administrative and other actions taken or intended to be taken by authorities and functionaries of the Government.

7. Sub-clause (b) of clause (3-A) takes away the power of the High Court to make any order relating to the validity of any judgment or sentence passed by a Military Court or a Tribunal, even if such judgment or sentence has been passed without jurisdiction, in excess of jurisdiction o beyond the limits prescribed by the Martial Law Regulations or Orders which provide for the limits of its jurisdiction and the procedure for trial of causes before its competence and jurisdiction. Similarly sub-clause (c) of the said clause places an embargo upon the Court to issue any injunction or order or even to entertain any proceedings in respect of any matter within the jurisdiction of the Military Court or Tribunal of which cognizance has been taken. Sub-clause (h) places an embargo upon the High Court against issue of process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either. It was pointed out that all functionaries of State are acting either under the authority of the Chief Martial Law Administrator or a Martial Law Administrator. Clause (3-B) is a provision declaring with retrospective effect invalidity of all orders or processes referred to in clause (3-A) issued before the Constitution (Amendment) Order or thereafter and for abatement of proceedings for such orders or processes pending before any Court, including the Supreme Court and High Court.

8. In view of the aforesaid it was submitted that amendments in question would result in total ouster of the jurisdiction of this Court under Article 199 of the Constitution with the result that the power of judicial review granted to the High Courts will be taken away in its entirety. It was argued by Mr. Khalid Ishaque that the real crux of the matter is whether the power Lo make the law in question is an exercise of the original power or whether by virtue of the decision of the Supreme Court in the case of Begum Nusrat Bhutto. According to the learned counsel the source of power available to the present regime is the recognition given to the constitutional deviation by the Supreme Court. In this connection he referred to the argument of Mr. A. K. Brohi before the Supreme Court in the case of Begum Nusrat Bhutto that the doctrine of necessity did not apply as with the supersession or destruction of the old legal Order even this doctrine or concept has disappeared and that even if the said doctrine were to apply, only the initial act of taking over by the Army could be tested, but all subsequent actions could not be Judged in the light of this doctrine as the Courts were now governed by the limitations placed upon them by C. M. L. A. Order No, 1 of 1977. On page 706 my 'Lord the Chief Justice who wrote the leading judgment repelled the contention in the following words : "It seems to me that the view expressed by Mr. A. K. Brohi is not at all tenable. The question of considering the application of the doctrine of necessity has obviously arisen in this case as the Court is not persuaded that the Military intervention provides its own legality simply for the reason that it has been accepted by the people of Pakistan, and has become effective in that sense. Even otherwise, if it is assumed that the old Constitution has been completely suppressed or destroyed, it does not follow that all the judicial concepts and notions of morality and justice have also been destroyed simply for the reason that the new legal Order does not mention anything about them.

On the contrary, I find that the Laws (Continuance in Force) Order makes it clear that subject to certain limitations, Pakistan is to be governed as nearly as may be in accordance with the 1973 Constitution, and all laws for the time being in force shall continue. These provisions clearly indicate that there is no intention to destroy the legal continuity of the country, as distinguished strictly from the constitutional continuity."

' While considering the extent and scope of the powers which the Chief Martial Law Administrator may exercise during the temporary period for which he has taken control of the administration in Pakistan, a similar contention advanced by the learned Attorney-General was considered to the effect that once the take over is validated on the principles of necessity the Chief Martial Law Administrator would have the right to govern the country in any manner he thinks best, and the Courts in Pakistan will be bound by the provisions of C. M. L. A. Order No, 1 of 1977, which must henceforth be treated as a supra-Constitutional instrument, binding all authorities in Pakistan.

Repelling the contention once again his Lordship summarized the true legal position on page 715 of the report as under :- "(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 ;

(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 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 purpose 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 Oraers, as the occasion may require ; and

(v) That the superior Courts continue to have the power of judicial review to Judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance.

' This last point needs a little explanation. In the body of this judgment opinions of certain textbook writers and contemporary jurists have been quoted in support of the proposition that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for a specified and limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of salcus populi supremo lex, the Superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity.

' There is yet another, and a stronger reason for holding that the power of judicial review continues.

The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March, 1977, but no such considerations arose in regard to the judicial organ of the State.

Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away.

' Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation, the fact remains that the ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the Superior Courts.

' Lastly, the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial Law Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, make full provision for their adjudication. In some cases, interference has occurred even when the contending parties had already been litigating in the civil Courts regarding the same disputes. Th.; necessity which justified the Proclamation of Martial Law did not arise owing to the failure 'of the Courts to adjudicate on these matters. Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities, and the only remedy to the citizens against any such encroachment can be by way of judicial review in the Superior Court."

' Mr. Khalid Ishaque also pointed out that the contention based upon the theory of revolutionary legality was also rejected by the Supreme Court to be irrelevant to the situation and the circumstances in which the Military took over the administration of the country on 5-7-1977 and contended that the source of power of the present Government is not the original source flowing from the takeover but as explained by the Supreme Court is the necessary corollary of the extra- Constitutional step necessitated by the complete break down and erosion of the constitutional and moral authority of the previous Government. Mr. A. H. Pirzada also joined in this submission to contend that the Supreme Court declared the law regarding the Proclamation and the C. M. L. A.

Order No, 1 of 1977 and gave legal validity to the same which is, therefore, the source of power inter alio for promulgating legislative measures by the C. M. L. A. During the period of constitutional deviation.

9. At page 719 the Supreme Court observed : "A perusal of the provisions of the Laws (Continuance in Force) Order also shows that they are primarily designed to give effect to the purposes of the Proclamation. As, however, this Order is an offspring of necessity, the superior Courts continue to have the power of judicial review, notwithstanding anything to the contrary contained in this Order, to test the validity of its provisions any action taken thereunder, in the light of the principles regulating the application of the law and doctrine of necessity, as already set out earlier." (Underlining is mine).

' Basing upon the foregoing passages cited from the judgment of the Supreme Court Mr. Khalid Ishaque raised the following contentions :

(i) That the power to amend the Constitution does not include a power (Here in italics) to destroy the constitutional trichotomy or to change its basic structure.

(ii) That in Islam it is not given to any man to deny judicial review of his own acts.

(iii) That the power to amend the Constitution or to make ,the other legislative instruments is dependent on the existence of material which would satisfy a reasonable man that for the purpose of restoration of democracy the proposed legislative measure was necessary.

(iv) That it will additionally have to be shown that the proposed legislative measure did not command or demand anything more than what was absolutely necessary for the achievement of the objective.

(v) That in the ultimate analysis it is not the subjective assessment of the law maker which will be final but the Superior Courts shall have to be satisfied on the criterion of reasonableness that such necessity exists."

' Elaborating these submissions the learned counsel contended that if a plenary power to amend the Constitution in the manner the law maker thinks best is conceded then it will amount to reviving and accepting the original contention that the old Legal Order as preserved by the Constitution of 1973 has been totally replaced by a new Law giving constitutional fact on the principle of revolutionary legality to introduce a totally different Legal Order.

10. Mr. Abdul Hafeez Pirzada elaborating his submissions on this question urged that clause (v) mentioned by the Supreme Court at page 716 is not a statement of fact but a principle laid down that under no circumstances judicial power can be taken away. He raised the question whether the power at present invoked to amend the Constitution is superior to that enjoyed by the Chief Martial Law Administrator on 5th July, 1977 and submitted that the constituent power available to him is not superior to that enjoyed by him on the aforesaid date. Referring to the preamble of the present amending Order he submitted that the legal instrument itself does not claim any superior power than was available on the aforesaid date as the power invoked is the Proclamation and C. M. L. A.

Order No, 1 of 1977 which was the subject-matter of the judicial pronouncement by the Supreme Court. Learned counsel made a distinction between the plenary constituent power enjoyed by a body charged with the preparation of a new Constitution and the ordinary constituent power which flows from the Constitution once adopted by a constituent body. In his submission the Chief Martial Law Administrator does not possess plenary constituent power enjoyed by a constituent body as no limitations on such powers are operative as to procedure and mode for the preparation of the Constitution whereas limitations are imposed on the amendatory -power flowing from the Constitution as laid down in Articles 238 and 239. A further argument was advanced before us that apart from the express limitations provided for in the aforesaid Articles, there are implied restrictions dictated by the doctrine of basic structure. In support of this submission counsel further urged that the amendatory power under the Constitution enjoyed by the Legislature is subject to certain implicit limitations which are to be obeyed by the constituent power. According to him there are six fundamentals bf basic structure in the Constitution as under :

(i) Federalism ;

(ii) Islamic character of the State ;

(iii) Republican democracy ;

(iv) Trichotomy of State power ;

(v) Sovereignty of State ; and

(vi) Fundamental obligations of State.

' These fundamentals, according to the learned counsel, are enshrined in Articles 1 to 5 which are sacrosanct and outside the amendatory power flowing from the Constitution as the substantive provisions of the organic law translating the will of the people of Pakistan as expressed in the preamble reflecting the objectives resolution. On these premises it was urged by the counsel that the power of judicial review which is the very essence of the doctrine of rule of law as enjoined by Article 4 of the Constitution cannot be taken away even under the Constitution by the Sovereign Parliament and, therefore, permitting the amendments in question would result in conceding supra-Constitutional power although the Supreme Court has held that C. M. L. A. Order No, 1 of 1977 is not a supra-Constitutional instrument from which it follows that no plenary constituent power was conceded.

11. As already stated the larger issues raised by the learned counsel in their arguments need not he gone into in this case. After having care- fully considered the relevant questions it appears to me that in view of the decision in the case of Begum Nusrat Bhutto it cannot be disputed that the Chief Martial Law Administrator has legislative powers including the power to amend the Constitution, but the question that arises for consideration is whether the amendment in the Constitution affecting the jurisdiction of this Court under Article 199 can be validly made by him. In this regard a careful analysis of the judgment of the Supreme Court as to the extent and scope of the powers which the Chief Martial Law Administrator may exercise during the temporary period of constitutional deviation and of the powers of the superior Courts, to my mind, it unequivocally postulates that his law making powers are not unfettered although he may legislate in the specified fields if the dictates of necessity so demand. The clear principle laid down is that since unlike the executive and legislative organs of the State, the judicial organ had not lost its constitutional and moral authority, on no principle of necessity could the powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away. It seems to me that this proposition was laid down as a principle applicable during the entire period of constitutional deviation as a basic structural arrangement for applying the test of necessity to all the acts of the present regime. The legal position, if I may say so with respect, so lucidly enunciated in the above judgment clearly spells out the distinction between the extent and scope of the law making powers of the Legislature organ of the State during normal constitutional phase and the extraordinary period of constitutional deviation. The legislative authority of the Parliament during the normal period when the Constitution is in full operation is not subject to the constraints of the law of necessity, which is an additional limitation within which this power can be exercised during the period of constitutional deviation.

12. It may well be asked that if the judicial organ of the. State has survived the initial take over on account of grave State necessity, so that it stands as a distinct and independent entity constituting a separate organ of State as a part of the old Legal Order to perform its legitimate function on the principle of trichotomy of powers and its special function to apply the test of the law of necessity, can the amplitude of its constitutional power be whittled down so as to place beyond its reach some of the actions of Government, except by replacing completely the old Order with the new Legal Order ? To my mind, the observations of the Supreme Court as contained in paragraph (v) of their conclusions as reproduced above are to be understood in this context and the answer to the question posed above, with all humility as gleaned from the dicta laid down is that the powers of superior judiciary under Article 199 remained intact to their "full" extent and "may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance." In the face of the clear rule postulated by the Supreme Court this Court cannot hold that the power to amend the Constitution vailable to the Chief Martial Law Administrator includes the power to take away the power of judicial review granted to the superior Courts under the Constitution. Substantially the same provisions of the C. M. L. A. Order No, 1 of 1977 were held to be ineffective by their Lordships, to take away the power of the superior Courts.

13. While saying the above I am conscious of the wording of the Constitution (Amendment) Order, 1980 which contains a non obstante clause excluding the effect of the judgment of any Court including a judgment in respect of the powers of the Courts relating to judicial re view. In this behalf I may state that it is the mandate of Article 189 of the Constitution which has been left untouched that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law be binding on all other Courts in Pakistan. This Court is, therefore. Under a constitutional obligation to decide the questions raised by application of the rule laid down by the Supreme Court in the case of Begum Nusrat Bhutto.

14. Although I have held that the power of judicial review conferred by the Constitution on the superior Courts is beyond the legislative authority of the present Government, reference may be made to the observations of the Supreme Court in the case of Mr. Zulfiyar Ali Bhutto v. State (1), wherein their Lordships have explained the effect of their conclusions in the case of Begum Nusrat Bhutto as to the powers of the Chief Martial Law Administrator under the doctrine of necessity. At page 58 of the report their Lordships after reproducing the passage categorising the permissible acts and legislative measures recognized under the law of necessity made the following observations : "These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated

(1) PLD 1978 SC 40 categories, then it must be construed as being necessary and thus held valid under the law of necessity. The word 'necessary' has, therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning.

' It is also necessary to state that, as pointed out by this Court in a slightly different context in the case of Mir Abdul Baqi Baluch v. The Government of Pakistan, 'under a constitutional system which provides for a judicial review of an executive action, it is a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of a judicial authority reviewing executive actions to sit in appeal over the executive, or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied." We may add that the material in question may either be provided by the authority whose action is challenged, or it may be such of which the Court can take judicial notice, as was done by this Court in the recent 'case of Begum Nusrat Bhutto.

' As to what is reasonable and what is not, the observations Made by Hamoodur Rahman, J. (as he then was) in the case of Abul A'la Maudoodi v. The Government of West Pakistan provide a useful guide, namely "But what is the test that the Courts are to apply in determining what is or is not reasonable.

Obviously this cannot depend upon the notions of reasonableness of individual. Judges, for, one Judge may well regard that as reasonable which another regards as unreasonable. Nor is the opinion of the Legislature conclusive on this question. The reasonableness must. Of course, be judged by the standards of an ordinary prudent and reasonable citizen Reasonable is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances.

' It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution."

' In the first place it may be pointed out that these observations were not made in relation to legislation of the type in question before us, namely, constitutional amendment taking away the powers of the High Courts under Article 199. As already explained the passage reproduced from the case of Begum Nusrat Bhutto, in my humble opinion, was not intended to be read out of the context and the background in which it was stated in the whole judgment, but has to be read subject to principle laid down that the powers of the High Court under Article 199 remained intact to their full extent notwithstanding any Martial Law Regulation or Order issued by the President or Chief Martial Law Administrator. In the present case, therefore, in my opinion the observations are not applicable as there is lack of power to legislate on this subject. But even assuming that the present amendment is to be examined in the light of the tests of necessity laid down by their Lordships, the obvious result of upholding the amendments would be to place a large area of administrative actions and the orders of authorities, if not the entire field of the Governmental activities beyond the jurisdiction of the High Court under Article 199, with the result that the test of necessity even as a term of art cannot be made applicable to su.:11 acts or actions of Martial Law Authorities or of persons acting under their authority. I am unable to conceive as to how the rule laid down in this case will apply to such acts in that eventuality. These Authorities will thenceforth be the sole Judges of the necessity of their own acts on their own subjective satisfaction. Such a consequence will upset the very basis of both the cited judgments.

15. Even otherwise the argument cannot be made that all that the Court has to do is to find whether the act under examination falls within any of the categories mentioned by their Lordships. It has clearly been provided that the test of reasonableness has to be applied even if the act complained of falls within the ambit of permissible acts. The observe a- F tions cited above have been interpreted in various judgments and reliance was placed on behalf of the petitioners on the following very pertinent observations of my Lord the Acting Chief Justice in the case of Mumtaz Ali Bhutto v. Deputy Martial Law Administrator, Sector-I, Karachi (1) at nage 367 of the report : "While on this subject I must take notice of the argument advanced by the learned Attorney- General. He urged before us that the Supreme Court in the judgment in the case of Begum Nusrat Bhutto had recognized a power in the Chief Martial Law Administrator to amend the Constitution.

He went on to state that the concept of necessity governing the power to amend the Constitution had again been discussed by the Supreme Court in the case of Mr. Zulfigar Ali Bhutto v. The State.

He has relied on a paragraph appearing at page 58 of the said report to demonstrate that if the amendment in the Constitution is relatable or bears nexus to any of the acts permitted to be done by the Chief Martial Law Administrator, the acts shall be presumed to be a product of State necessity. I find it difficult to construe the judgment in the case of Mr. Zulfiqar Ali Bhutto in the manner the learned Attorney-General would wish to have it construed. In the very paragraph on which the learned Attorney-General has relied the tests of validity are that such action

(1) PLD 1979 Kar. 307 ' should be in the public interest and aimed at achieving the objectives of Martial Law. It cannot be said that if the action of the Chief Martial Law Administrator falls within anyone of the categories considered in isolation it is presumed to satisfy the test of necessity, regardless of the reactions on other conclusions recorded by Supreme Court. If we are to agree with such interpretation then the power that has been conferred on the Chief Martial Law Administrator to amend the Constitution would virtually operate to confer on him the power to do anything that he may think best and render the power of judicial review nugatory. That would mean that he was the only Judge of his actions. That may even be meant to imply that the power of the Courts could be curtailed by him because even such powers come from the Constitution. In these circumstances it would be difficult to reconcile the various other clauses as are contained in the conclusions recorded by their Lordships in the case of Begum Nusrat Bhutto. On reading the two judgments of Begum Nusrat Bhutto and Mr. Zulfiqar Ali Bhutto together I am clearly of the view that amendments in the Constitution can only be justified on ground of necessity."

' Reliance was also placed on the observations of Fakhruddin G. Ebrahim, J. In the same case at page 397 of the report : "The aforesaid passage as was pointed out by Mr. Abdul Hafeez Pirzada and so also Mr. Muhammad Ali Saeed, the learned amicus curiae cannot be read in isolation. Even the Supreme Court does not appear to have followed the principle that once there is nexus between the impugned measure and th(e permissible actions, there is no need for any further inquiry. In the above case the main question before the Supreme Court was whether in terms of President's (Post-Proclamation) Order No, 4 of 1977, read with the relevant provisions of the Constitution, it was permissible for one person to combine the functions and duties of two constitutional offices, namely, the Acting Chief Justice of the High Court and the Chief Election Commissioner. The conclusion reached was that the appointment of Mr. Justice Mushtak n Hussain as Chief Election Commissioner was in the nature of a temporary and as hoc appointment in a situation not covered or contemplated by the Constitution of 1973 and that it was merely intended for the limited purpose of holding the forthcoming General Elections and therefore, it was not an appointment to which the prohibition contained in Article 216 of the Constitution was attracted. Every contention raised on behalf of the petitioner in the above case in relation to Post-Proclamation Orders 4 and 5 of 1977, though on the subject of elections was sought to be justified first by reference to the Constitution and whenever there was departure from the Constitution on the ground that the Orders clearly fell within the objectives for which Martial Law was imposed in the country on the 5th of July, 1977 to ensure the restoration of democratic institutions under the Constitution. In other words the Supreme Court was not satisfied in concluding the controversy by a statement that there was nexus between the Presidential Orders and the permissible action, which sufficiently answered the test of necessity. It may also be noticed that following the passage quoted above the Supreme Court reiterated the extent of the High Court's jurisdiction under ' Article 199 in the case of Mir Abdul Baqi Baloch v. The Government of Pakistan and in the case of Abdul A'la Maudoodi v. The Government of West Pakistan ' He further observed : "In Begum Nusrat Bhutto's case the Supreme Court approved the following summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court as embodying the true essence of the doctrine and providing useful and practical guidelines for its application : "(a) An imperative and inevitable necessity or exceptional circumstances ;

(b) No other remedy to apply ;

(c) The measure taken must be proportionate to the necessity ; and

(d) It must be of a temporary character limited to the duration of the exceptional circumstances.

' The Supreme Court also approved the following remarks made by De-Smith in his book 'Constitutional and Administrative Law'.

"In some situations where constitutional action has been taken by person wielding effective political power, it is open to a Judge to steer a middle course. Lie may find it possible to ask that the framework of the pre-existing order survives but the deviation from these norms can be justified on the grounds of necessity. The principle of necessity, rendering lawful what would otherwise be unlawful is not unknown to English law ; there is a reference of necessity, albeit of uncertain scope, in criminal law and in constitutional law, the application of Martial Law is but an extended application of this concept. But the necessity must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescene in the supersession of the Legal Order ; it is essentially a transient phenomenon.

' To my mind the aforesaid prerequisites would become meaningless, if our jurisdiction was merely limited to finding a nexus between the impugned measure and the permissible action. As was pointed out by Mr. Muhammad Ali Saeed if the argument of the learned Attorney-General is accepted an amendment made to the Constitution by the C. M. L. A's. Permissible act, will have to be automatically accepted as necessary and the Court will have no jurisdiction to examine its justification which is surely not the law laid down by the Supreme Court, for it will make redundant the test of necessity laid down in Begun? Nusrat Bhutto's case."

16. I. Mahmud, J. Made the following observations in his judgment in the aforesaid case : "There is no doubt that Martial Law Order 12 is a law passed by a competent Legislature even though it is by an individual person. For these reasons, the third submission of Mr. Pirzada based on Article 4 cannot be accepted. However, I have some anxiety, because it would follow from this view that there would be no restriction upon the Chief Military Authority to make any despotic or tyrannical law which may deprive persons of their lives and liberty. But I do not think that there would be such practical danger, because the power of judicial review of the superior Courts is in full force to strike down such laws on the touchstone of necessity." (Underlining is mine).

' In the context of this background I. Mahmud, J. Apparently interpreted the observations of the Supreme Court in the case of Mr. Zulfiqar Ali Bhutto as laying down the test that if it can be shown that the law reasonably falls within one or the other of the categories enumerated in Begum Nusrat Bhuito's case, then it must be construed as being necessary, but in fact applied his mind to the nature of law in question and held that the law falls within the category (iii)(d) as a measure tending to establish or leading to the establishment of the declared objectives of the proclamation of Martial Law, namely, the restoration of law and order and normalcy in the country and the earliest possible holding of free and fair elections. He also held that no existing detention law covered the subject-matter relating to "acts prejudicial to the purposes for which Martial Law has been proclaimed". Clearly, therefore, the learned Judge applied the objective test of the law of necessity in reaching his conclusion that the impugned law was validly made.

17. Their Lordships of the Supreme Court have referred to the case of Mir Abdul Baqi Baluch v.

Government of Pakistan (1), while laying down the scope of judicial review in such cases. In that case at page 322 of the report it was observed : "Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority ?

If this could be so, then this 'judicial power' would, as pointed out in that case, be 'reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction', for imposing restraints on the enjoyment of the fundamental rights of citizens' and Article 2 of the Constitution itself would be 'rendered meaningless'. If the mere production of an order of a detaining authority, declaring that he was so satisfied, was to be held to be sufficient also to 'satisfy' the Court then what would be the function that the Court was expected to perform in the discharge of this duty."

' Further it was observed at page 325 as follows :- "If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it material upon which the authorities have purported to act."

18. Reference was also made in the case of Mr. Zulfiqar Ali Bhutto by their Lordships in relation to what constitutes reasonable or otherwise, to the case of Abul A'la Maudoodi v. The Government of West Pakistan (2). The observations of Hamoodur Rahman, J. (as he then was) from the case cited by their Lordships clearly state that the opinion of the Legislature as to the reasonableness of the impugned legislation is not conclusive on this question. I may with advantage further cite the following observations of the learned Judge from the same case which seems to me to further elucidate the passage quoted by their Lordships in the 1978 case : "In my view it will neither be possible not advisable to lay down any exact or precise enumeration of the matters which may be taken into

(1) PLD 196$ SC 313 (2) PLD 1964 SC 673 consideration for testing the reasonableness of such a restriction, for, there can be no general standard of reasonableness applicable to all cases. It will certainly depend upon the nature of the right sought to be restricted, the nature and extent of the restrictions sought to be imposed, the nature of the circumstances in which the restriction is to be imposed, the evil sought to be prevented or remedied, the necessity or urgency of the action proposed to be taken and the nature of the safeguards, if any, provided to prevent possibilities of abuse of power. All these and there may well be other considerations, such as the objectives of the legislation and the prevailing conditions at the .Time, in the light of which the reasonableness has to be considered. This much, however, appears from decided cases that the Courts both in this country and in other foreign jurisdictions have treated a restriction as unreasonable if the restriction is for an indefinite and or unlimited period or disproportionate to the mischief sought to be prevented or if the law imposing the restriction has not provided any safeguard at all against arbitrary exercise of power."

In the light of the aforesaid I am clearly of the view that each act or legislative masure of the present administration has to be judged in the G light of the principles laid down by their Lordships as to whether it reasonably falls within the ambit of their authority.

19. It was submitted by Mr. Abdul Hafeez Pirzada that the category of facts and legislative measures mentioned in clause (iii)(a) at page 710 in the case of Begum Nusrat Bhutto taken by itself would seem to confer total power and, therefore, it cannot be argued that the subsequent categories mentioned in clauses (b), (c) and (d) further extend this power, but obviously these subsequent categories limit the power conferred in category (a) and provide the constraints on such power. It was forcefully contended that if executive acts covered by clauses (b) and (c) have been subjected to the test whether the acts tend to advance or promote the good of the people or are required to be done for ordinary orderly running of the State, how can it be contended that the constituent power of amending the Constitution which has to be placed on the highest pedestal in the entire gamut of powers, was not subject to any limitations ? I find, immense force in this submission and hold that the exercise of the powers H of amendment of the Constitution has also to satisfy the test of necessity as laid down by their Lordships as stated above. In Sadiq Hussain Qureshi v. Federation of Pakistan (I), also the view was expressed that the power of the Chief Martial Law Administrator to amend the Constitution as recognized by the judgment of the Supreme Court in Begum Nusrat Bhutto's case is subject to certain limitations. In the case of Mr. Zulfiqar Ali Bhutto v. State also their Lordships applied the test contained in cat.Gory (d) of clause (iii) to the impugned legislation before them in holding it to be competently made and did-not leave the matter only by holding that there was power to take legislative measures as recognized in category (a). I, therefore, find no force in the view that holds that the Courts have to , merely determine whether there exists a nexus between the impugned act or ' legislative measure and the categories of permissible actions.

20. If at all, therefore, the present amendments could be made on the j Subject of the judicial review (which in my opinion as already stated is (1-)PL D 1979 Lab. 1 ' beyond the competence of the present administration) then the next question to consider is whether the amendments in Article 199 so far as they are relevant for the purposes of the questions referred to this Bench are reasonable as required by the Supreme Court. It is unfortunate that we are left to Judge this question without being informed the Government point of view as to the materials and reasons for enacting this piece of legislation. The text of two speeches made by the President dated 16th October, 1979 and 3rd June, 1980 have been placed on the record which is only material available with us for this purpose. The first-mentioned speech is really not relevant to the Constitution (Amendment) Order No, 1 of 1980 as it seems to have been made before the Constitution (Second Amendment) Order, 1979 which inserted a new Article 212-A in the Constitution providing for the power to establish Military Courts or Tribunals. The speech touches the question of establishing the Military Courts with exclusive jurisdiction for trial of offences punishable under the Martial Law Regulations or Orders or any other law for the time -being in force as provided by a Martial Law Order. The question relevant for the present purposes, however, is not whether there is justification for establishing Military Courts for the trial of criminal offences.

The question really is whether there are reasonable grounds for taking away the supervisory jurisdiction of the High Court under Article 199 in relation to the proceedings, judgments and sentences taken or passed by the Military Courts. It was contended before us by Mr. G. H. Abbasi that Martial Law Administration is temporary in nature and, therefore, it cannot produce in the shape of constitutional amendment a permanent constitutional measure to outlive itself resulting in perpetuation of Military dispensation of justice after restoration of democracy. He further submitted that the amendment is contrary to the constitutional provision that judiciary should be separated from the executive. Mr. Kamal Azfar argued that the necessity for such legislation would be justifiable only on the factual ground of physical inability of the Judges of the superior Courts to exercise this power.

21. In the speech of 3rd June, 1980 following reasons have been assigned :

(1) Complicated judicial system consumes a lot of time and money to secure justice ;

(ii) To eradicate some heinous crimes it was necessary to award instant punishment to criminals.

(iii) Some civil Courts interfered in the proceedings of the Military Courts with the result that the people's expectations could not be fulfilled nor could they get quick justice..

(iv) To provide speedy justice and to make Martial Law effective Article 212-A was added to the Constitution whereby grave cases were transferred from the jurisdiction of civil Courts but still the object of the amendment was not achieved as civil Courts started issuing stay orders on the judgment of Army Courts.

(v) The decision was, therefore, taken that jurisdiction of Military Courts should be reduced and confined to only eight grave crimes instead of thirty-five and the decisions of Military Court in cases relating to these crimes have been taken out of the jurisdiction of the civil Courts.

(vi) What is needed is that there should be no interference in the few cases that come up for hearing in Military Courts.

It will be seen that the first four reasons are pertinent to the previous amendment inserting Article 212-A in the Constitution. There is no cavil with the proposition that for special matters special Courts or Tribunals may be established with exclusive jurisdiction in order to meet the requirement of speedy justice. These cases were not otherwise within the ordinary jurisdiction of the High Court to try and dispose of : Therefore, transferring the jurisdiction from the ordinary criminal Courts to Military Courts no part of the power under Article 199 would necessarily be affected. Same is the position in regard to the reasons mentioned in No, 5 above. The remaining reason mentioned at No, 6 is the principal and the only relevant reason so far as the present amendments are concerned.

22. In the first place in order to consider the reasonableness of the present amendment it is not sufficient to take into consideration only the present position as to the cases which are cognizable by the Military Courts. The true position is that under Article 212-A it is the power of the Martial Law Authorities to establish Military Courts for the trial of offences punishable under Martial Law Regulations or Orders or even under the ordinary law. Under sub-clause (2) of Article 212-A the jurisdiction and powers of the Military Courts can be specified by a Martial Law Order, so that in practice the jurisdiction of Military Courts can be enlarged to embrace any offence under the penal laws of the country. At present under Martial Law Order No, 77 issued by the Chief Martial Law Administrator a number of specified offences have been made triable by the Military Courts but as stated any criminal case can be made triable by a Military Court by a Martial Law Order. Therefore, Martial Law Orders being sub-Constitutional legislations can effectively enlarge o abridge the jurisdiction of the Military Courts as deemed fit. It is in this context that the question of the constitutional jurisdiction or the power of judicial review of the High Court has to be examined. In other words, it will be possible to exclude the judicial review of the High Court from the proceedings in connection with any criminal case. This question must be construed in the light of the nature and scope of the powers under Article 199 of the Constitution. It is well-recognized that the High Court does not act as a Court of Appeal while exercising this jurisdiction and only steps in when there is excess of jurisdiction on the part of an inferior Court or the proceedings of such Court are coram non judice. Obviously t, the object for establishing Military Courts is to punish the true culprits of the offences charged against them in accordance with the law governing the jurisdiction of the Military Courts. It cannot be even suggested that the administration would like the Military Courts to overstep their jurisdiction or to try the accused in violation of the mandatory provisions of the rules of procedure which they are under a mandate of the law applicable to them to obey. The High Court only corrects such excess or want of jurisdiction and does not interfere in the exercise of lawful jurisdiction or orders thus passed by the Military Courts. In my humble opinion, if a matter is examined by the High Court and is further found to be correct, it strengthens the administration of justice with the approval of the superior Courts and if the order or sentence is upset, in the final analysis justice is done to a citizen. There are always two parties to a cause which comes up for adjudication before a Court including a Military Court and it is as important to do justice to the accused as to the complainant.

' The interference of the High Court, therefore is, in furtherance of justice and not to hamper the course of justice. I am tempted to refer co an old decision from the English jurisdiction which dealt with this issue and is Heddon v. Evanas (1). This was a case of a Military Officer who was sentenced to imprisonment for conduct said to be to the prejudice of good order and military discipline by his Commanding Officer. The plaintiff brought action against his Commanding Officer to recover damages for alleged false imprisonment etc. Since the alleged injuries arose out of military relationship existing between the parties the defence was tat the action did not lie on the ground that it pertained to administration of military discipline by the defendant. Mr. Justice McCredie who delivered the judgment referred to the dictum laid down earlier that a case involving the questions of military duty alone is cognizable only by a Military Tribunal and not by a Court of Law and observed : "It is essential to consider the nature of Military Law proper. This law is to be found in the Army Act and the rules and the King's Regulations made under the Act, and also in the Army Orders. This body of provisions constitutes the military code, alike in peace and war. Before 1689 Military Law existed only in times of war were framed and announced under the prerogative of the Crown. But Military Law in the true sense of the word, applicable alike in peace as in war, was first created by the Military Act of 1689. That Act created a statutory military code. It was passed at a time when the rights of personal freedom had been successfully reasserted in the country. No more cogent weapons for enforcing such rights then existed or can now exist than the writ of habeas corpus, and the actions for false imprisonment and assault."

' The Editors of the report then made the following observations regarding the judgment : "His Lordship then traced the history of Military legislation and said that the punitive jurisdiction of Officers and their powers as to sentences were indicated by section 46 of the Army Act and by King's Regulation No, 487. The plaintiff contended that if a Court-Martial or an Officer acted without jurisdiction as to trial or inflicted a sentence on a soldier which it or he possessed no power to impose, whereby the soldier suffered in his person or his liberty, an action for false imprisonment or assault would lie on proof of the appropriate facts, although the acts complained of arose in the course of military discipline. It was a settled principle of English law that a man who without lawful authority caused another to be arrested, imprisoned or otherwise injured in his person or property was liable to an action for damages. Did that apply to the acts of Military Tribunals ? On principle he could see no good reason for exempting Military Officials from the operation of that law. If the acts of the Military Tribunals or Officers with respect to military discipline were insusceptible of supervision by the civil Courts, then the gravest consequences might ensue. It could scarcely be that military men were alone the interpretors of Military Law. If so, they became above the civil law, and so to hold would be to exclude the Courts from one of their most important and beneficient functions. The Military Law was a part of the law of realm. It

(1) 35 T L R 642 rested on statutory basis. A soldier was a person subject to two sets of laws-the Military Law and the Civil Law. The liberty of a soldier should not be infringed save in so far as that infringement was justified either by the law Military or the law Civil. The question of justification should ultimately be determined by the ordinary Courts of law. It was for those Courts to determine the extent of the Military jurisdiction given to Military Tribunals and Officers by the Acts of Parliament."

23. Additionally if there is any erroneous decision by the High Court the existing law provides a remedy before the Supreme Court. It may be recalled that in the earlier period of the present Martial Law when the country was faced with grave law and order situation, it was considered reasonable to remove whatever restrictions were imposed on the power of the High Courts under Article 199 by - means of Constitution (First Amendment) Act, 1974 and Constitution (Fourth Amendment) Act, 1975 vide C. M. L. A. Order No, 6 of 1977, dated 22nd September, 1977. It was argued on behalf of the petitioners that even by those amendments the final power of judicial review was allowed to remain intact. Another aspect of the matter may also be considered. Article 199 provides a special; remedy to the citizen against the excess or want of jurisdiction on the part of Military Court, which will be totally taken away under them -amendment without providing for any similar remedy under the law which, is a matter requiring all consideration .That it deserves. After careful and! Anxious consideration of all the above said matters in the light of the principles laid down by the Supreme Court, I have reached the conclusion that the amendments seeking to take away the powers of the High Courts under Article 199 in relation to the proceedings before the Military Courts) and sentences passed by them do not satisfy the test of reasonableness and cannot, therefore, be upheld.

24. For the foregoing reasons, I would answer both the questions referred to this Bench in the negative. The aforesaid are the reasons for my opinion recorded in the short order announced by the Court on 18-6-1980.

' ABDUL HAFEEZ MENON, J.-Number of petitions were filed by the petitioners under Article 199 of the Constitution challenging the convictions and sentences passed against them by the Military Courts. While some of the petitions stood already admitted to regular hearing and some were pending admission, Article 199 of the 1973 Constitution was amended by the President by his Order No, 1 of 1980 titled as - the 'Constitution (Amendment) Order, 1980' (hereinafter referred to as the Amendment Order) which reads as under :- ' THE CONSTITUTION (AMENDMENT) ORDER, 1980 President's Order No, 1 of 1980.

' 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 in that behalf, the President is pleased to make the following order :-

1. Short title and commencement.-(1) This Order may be called the Constitution (Amendment)

Order, 1980.

(2) It shall come into force at once.

2. Amendment to Article 199 of the Constitution.-In the Constitution, in Article 199, after clause (3) the following new clauses shall be inserted, namely :- (3-A) Notwithstanding any judgment of any Court including any judgment in respect of the powers of Courts relating to judicial review, a High Courts shall not, under this Article :-

(a) make an order relating to the validity or effect of any Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder

(b) make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal.

(c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal ; or

(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either.

(3-B) Every such order, injunction or process as is referred to in clause (3-A) made, granted or issued at any time before or after the commencement of the Constitution (Amendment) Order, 1980, shall, notwithstanding any judgment of any Court, shall be null and void and of no legal effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including the Supreme Court and a High Court, shall abate.

(3-C) The Proclamation of the fifth day of July, 1977, all President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders made on or after the fifth day of July, 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made."

' In view of the said amendment my Lord the Acting Chief Justice sitting with S. A. Nusrat, J. Directed all such petitions as were ripe for hearing on 3-6-1980 to be put up before this Full Bench constituted by him to answer the following questions :- (1)Whether the amendments made by the Constitution (Amendment) Order of 1980, inserting clauses (3-A), (3-B) and (3-C) in Article 199 of the Constitution are valid ; (2)Whether this Court has jurisdiction to hear petitions, whereby convictions, or proceedings before Military Courts, including. Summary Military Courts, are challenged ?

' However, after some preliminary arguments were made at the bar, the questions were re-framed as under :--

(1) Whether the power of this Court under Article 199 has been taken away in respect of cases arising out of or in relation to convictions, sentences and proceedings recorded, pending or taken by the Military Courts ?

(2) Whether the pending petitions in relation to the cases mentioned in question No, I have abated ?

' Main arguments were addressed by Mr. Khalid M. Ishaque and Mr. Abdul Hafeez Pirzada, while the remaining learned counsel, namely, Mr. G. H. Abbasi, Mr. Karnal Azfar, S. A. Wadood, Mr. Shaft Muhammadi and Mr. Sabihuddin Ahmed mainly adopted their arguments and made additions.

' Mr. A. A. Fazeel, who appeared for the Federal Government when called upon by the Court to state his case on behalf of the Government, very boldly stated that as a counsel for the Federal Government he had been instructed to state that the petitions had automatically abated, and no more. When asked if he would answer questions raised by the Court, he again very boldly stated that as a counsel for the Government he would make no submission and would answer no questions from the Court. Mr. A. I. Chundrigar, learned Advocate-General, appearing for the Sind Government and Mr. S. Lnayat Ali learned Standing Counsel appearing for the learned Deputy Attorney-General to whom notice was issued by the Court, adopted the same stand as taken by Mr. A. A. Fazeel. Thus, it is in this unfortunate position that we have to decide the important question of law involved by hearing only the learned counsel for the petitioners who addressed the Court at length.

' When the case proceeded on the first hearing, Mr. Khalid M. Ishaque submitted that, inasmuch as, the Amendment Order sought to take away power of judicial review of the superior Courts under Article 199 in respect of not only convictions recorded and sentences passed by the Military Courts, but also several other matters of more serious nature and consequence specified therein, the validity and effect of the amendment be considered as a whole and not in respect of one clause only relating to judgments and sentences passed by Military Courts or Tribunals. He pointed out that in case the Full Bench were to confine itself to the questions as framed and answered it in the affirmative it would not be possible for persons aggrieved by actions falling under one or the other of the remaining clauses to contend before a D. B. That the bar of jurisdiction was confined to the one clause of the amendment only. The argument of the learned counsel is not without substance, as, even otherwise, I genuinely feel that for deciding the first question as framed it will be unavoidable to consider the effect of the other provisions of the Amendment Order. Further, it is well-settled that Constitutional Instrument is to be construed lice any other document by reading it as a0 whole giving every part thereof a meaning consistent with the on the provisions thereof.

' Mr. Khalid M. Ishaque and Mr. Abdul Hafeez Pirzada mainly contended that the Supreme Court having held the present regime representing not a new legal order but only a phase of constitutional deviation dictated by necessity and granted such powers as fell within the scope of law of necessity, the present amendment taking away completely the power of judicial review of superior Courts, was beyond the competence of the President and was invalid.

' It was next contended by the learned counsel that, in any case, the Supreme Court in the case of Begum Nusrat Bhutto having in clear terms held that on no principle of necessity could the powers of judicial review of the superior Courts vested in them under the 1973 Constitution be taken away, the amendment which seeks to nullify the rule of law down by the Supreme Court and take away the power of judicial review of the superior Court was ultra vires the powers of the President and is invalid, as, otherwise, it would be recognising the theory of 'revolutionary legality' of new legal order providing its own source, which had been in no certain terms rejected by the Supreme Court in the said case.

' The learned counsel next submitted that the structure of the 1973 Constitution was based on trichotomy of state powers and by taking away Lhe power of judicial review of the superior Courts the amendment destroyed such structure.

' Mr. Khalid M. Ishaque further added that in Islam the Ruler was not above law and his acts are not immune from judicial scrutiny by the Courts and that the right to approach Court is given to a man by God which cannot be denied to him under Islam.

' Mr. Abdul Hafeez Pirzada further supplemented by contending that in addition to above, amendandatory power of the President was circumscribed by the following limitations :-

(a) the proposed amendment cannot transcend beyond the limits or demands of state necessity.

Necessity being to save the Federation and to provide a bridge to enable the country to return to the path of Constitutional Rule ;

(b) resort to a constitutional amendment can only be made in the event that the present constitution fails to provide a solution for the attainment of the declared objectives of Martial Law ;

(c) the power to amend the Constitution, as per sub-clause (iii) (a) at page 716 of the Supreme Court judgment is controlled by sub-clauses (b), (c) and (d) of clause (iii). Any amendment beyond the scope of these three sub-clauses would be void ;

(d) A Constitutional Amendment like any other executive or legislative act or function done or performed by the President/C. M. L. A. Has to be subservient to judicial scrutiny of the superior Courts under the power of judicial review, and for its validity must be positively upheld by the superior Courts as within the limitations prescribed.

' Mr. Abdul Hafeez Pirzada finally contended that even if constituent power to amend the Constitution be conceded to the President, he cannot amend the Constitution so as to destroy its basic structure or fundamentals and as such the President Order 2 of 1980 in fact destroys the basic structure-of the Constitution.

' Mr. G H. Abbasi further supplemented by contending that Martial Law was temporary and as such it cannot produce in the shape of the present amendment a permanent constitutional measure to outlive itself and to perpetuate military dispensation of justice after Martial Law is over. Mr. Kamal Azfar added that judicial power of review of the superior Courts can be taken away only when the Courts have ceased to exist.

' As would have been noticed, sub-clause (a) of clause (3-A) of the Amendment Order takes away the power of High Court of judging the validity and effect not only of Martial Law Regulations and Orders, but also of actions taken thereunder or even intended to be taken thereunder. Sub clause

(b) of clause (3-A) takes away the power of the Courts to make any order relating to the validity of any judgment or sentence passed by a Military Court or Tribunal, even if such judgment sentence may have been passed without jurisdiction or in excess of jurisdiction or in breach of mandatory provisions of the procedure al law. Sub-clause (c) of the said clause prohibits the Courts from granting any injunction or order or even entertaining any proceedings in respect of any matter to which the jurisdiction of Military Court or Tribunal extends and of which cognizance has been taken by Military Court or Tribunal. Sub-clause (d) then goes to prohibit the Court from issuing any process against the C. M. L. A. Or Martial Law Administrator or any person acting under the authority of either. Clause (3-B) declares with retrospective effect invalidity of all orders, injunctions or processes referred to in clause (3-A) issued before the Amendment order or thereafter and renders all proceedings for such orders or processes pending before any Court, including the Supreme Court and High Court as having abated, notwithstanding any judgment of any Court.

Clause (3-C) further goes on to confer retrospective validity on the Proclamadon, all Presidents Orders, Orders of Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders There can thus be no dispute that the Amendment P Order takes away completely the power of judicial review of the superior Courts under Article 199 in respect of the said matters.

' The question for consideration is whether the amendment made lay within the competence and powers of the President and is valid. For answering the aforesaid question it will be necessary to ascertain the scope and the extent of mandatory power of the President and this in turn would further require to ascertain the whole gamut of powers enjoyed by regime, including the President, under the present dispensation.

' As would have been seen, the amendment in question was made by the President in purported exercise of his power derived from the Proclamation and the Laws (Continuance in Force) Order, 1977. Both these instruments came up for examination before the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff, as to their validity and effect. Mr. A. K. Brohi, appearing for the Federation of Pakistan, contended before the Supreme Court that upto 5th July, 1977, Pakistan was being governed under the 1973 Constitution but on that day a new Legal Order came into force by virtue of the Proclamation issued by the Chief Martial Law Administrator which had displaced the old legal order, hence, the validity or legality of any action taking place after 5th of July, 1977 could be tested only against the guidelines provided by the new legal order provided by the Proclamation and the Laws (Continuance in Force) Order, 1977, and, therefore, all actions coming before the Courts must be decided according to this new legal frame work, that is, the Laws (Continuance in Force) Ordei,-1977. In support of his contention Mr. A, K. B.Ohi relied upon the theory of 'revolutionary legality' expounded by Professor Han Kelsen and adopted by the Supreme Court in Dosso's case (1) and the case from Southern Rhodesia, reported as Matizimbamuto v.

Lardner Burke and another (2). My Lord the Chief Justice, who wrote the leading judgment, after examining the theory of 'revolutionary legality' in the light of the two leading judgments in another historic case of Asma Jillani v. Government of Punjab (3) and the views of eminent jurists

(1) PLD 1958 SC (Pak.) 533 (2) (1968) 3 All E R 561

(3) PLD 1972 SC 139 and writers mentioned in the judgment repelled Mr. Brohi's contention as being untenable. The relevant observations by his Lordship may be reproduced as under :- "Kelsen's theory is also open to serious criticism on the ground that by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors of morality and justice which contribute to the acceptance or effectiveness of the new legal order. It must not be forgotten that the continued validity of the grundnorm has an ethical background, in so far as an element of morality is built in it as part of the criterion of its validity.

' These considerations assume special importance in an ideological State like Pakistan, which was brought into being as a result of the demand of the Muslims of the Indo-Pakistan sub-continent for the establishment of a homeland in which they could order their lives in accordance with the teachings of the Holy Qur'an and Sunnah. When the demand was accepted, it was given effect to by means of a Constitution passed by the British Parliament, which held sovereignty over India in 1947. In other words, the birth of Pakistan is grounded both in ideology and legality. Accordingly, a theory about law which seeks to exclude these considerations, cannot be made the binding rule of decision in the Courts of this country.

' It follows, therefore, that the legal consequences of an abrupt political change, of the kind with which we are dealing in this case, must be judged not by the application of an abstract theory of law in vacuum, but by a consideration of the total milieu in which the change is brought about, namely, the objective political situation prevailing at the time, its historical imperatives and compulsions ; the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed. Only on a comprehensive view of all these factors can proper conclusions be reached as to the true character of the new Legal Order.

' One last comment may also be offered in this behalf, namely, that the theory of revolutionary legality, as propounded by Mr. A. K. Brohi, can have no application or relevance to a situation where the breach of legal continuity is admitted, or declared, to be of a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution." (Underlining* is by me).

' My Lord then turned, to the serious disturbing circumstances culminating in the imposition of Martial Law on 5th July, 1977, and held that due to the said circumstances there had arisen grave political crises in the country leading to the breakdown of the Constitutional machinery of the executive and legislative organs and hence a situation had arisen for which the Constitution provided no solution, and it being in these circumstances that the Chief of Army Staff intervened to save the country, it was undoubtedly an extra-constitutional step which was obviously dictated by the highest considerations of State necessity and welfare of the people, and that the speech made by the C. M. L. A. On 5th July, 1977 making sincere and unambiguous declaration as his objectives was a major *[Here in italics] ' factor in persuading the people of Pakistan to willingly accept the new dispensation as interim arrangement to bridge the gap between the breakdown of the previous administration and the induction of the new elected government under the terms of 1973 Constitution, and the present government, therefore, acquired its effectiveness owing to its moral content and promise of restoration of democratic institution.

' Having thus held that extra-constitutional step was justified by State necessity and welfare of the People, my Lord proceeded to examine its legal consequences. It was argued by Mr. Sharifuddin Pirzada, the learned Attorney-General, that doctrine of necessity being recognised by the Holy Qur'an and the Judicial System of Western Countries and by the Supreme Court in several precedent cases, the Authority inducted into power on account of state necessity and the principle of salus populi suprema lex was fully entitled to administer the country and exercise supra constitutional powers for this purpose. Mr. Brohi sticking to the theory of 'revolutionary legality', however, contended that even if the said doctrine of necessity applied, only the initial act of taking over by the Army could be tested, but all subsequent actions could not be judged in the light of this doctrine, as the Judges would have no objective test to apply, and that in any case the Courts were now governed by the limitation placed upon them by the Laws (Continuance in Force) Order, 1977.

The Supreme Court rejected such contention of Mr. Brohi and held that the assumption of power by an authority having been held to be valid on the doctrine of necessity, the action taken by such an authority would have to be judged in the light of principles pertaining to the law of necessity. The relevant remarks made by their Lordships at page 706 of the judgment may be usefully reproduced as under :- "The question of considering the application of the doctrine of necessity has obviously arisen in this case as the Court is not persuaded that the military intervention provided its own legality simply for the reason that it had been accepted by the people of Pakistan and has become effective in that sense. Even otherwise if it is assumed that the old Constitution has been completely suppressed or destroyed, it does not follow that all the judicial concepts and notions of morality and justice have also been destroyed, simply for the reason that the new Legal Order does not mention any thing about them. On the contrary, I find that the Laws (Continuance in Force) Order makes it clear that, subject to certain limitations, Pakistan is to be governed as nearly as may be in accordance with the 1973 Constitution, and all laws for the time being in force shall continue. These provisions clearly indicate that there is no intention to destroy the legal continuity of the country, as distinguished strictly from the Constitutional continuity."

' Thus applying the dectrine, my Lord held that inasmuch as Martial Law was impelled by high considerations of state necessity and welfare of the people, the extra-constitutional step taken by the C. M. L. A. To overthrow the government of Mr. Zulfigar Ali Bhutto as well as the Provincial Government's and to dissolve the Federal and Provincial Legislatures stood validated in accordance with doctrine of necessity.

' My Lord then dealt with the extent and scope of powers exerciseable by C. M. L. A. During the temporary period for which he had taken control of the administration in Pakistan. It was contended by the learned Attorney-General before the Supreme Court that once the take over was validated on the principle of state necessity then the C. M. L. A. Would have the right to govern the country in any manner he thought best and the Courts in Pakistan were bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as supra- constitutional instrument, binding on all authorities in Pakistan, and in support, relied upon the statement regarding implications of Martial Law made by the authors in : Corpus Juris Secondum Volume 93 and "Salmond on Jurisprudence" page 190, 11th Edition. The Supreme Court, however, rejected such contention of the learned Attorney-General and observed that the definitions of Martial Law given in the said two books were irrelevant to the situation which in the present case was of more fundamental character where the constitutional machinery had broken down and its authority had been eroded by factors of political nature and, as such, the nature of the change had to be determined by examining all the surrounding circumstances including the motivation of those who had brought the change and the objectives declared by them as justifying the change, which declaration of intent was of higher purpose and was not to be construed in the limited sense in which preamble to a statute or even the Constitution is looked at; and thus taking into consideration the speech of 5th July, 1977, made by the C. M. L. A. Containing solemn declaration of his intentions and objectives of imposition of Martial Law, proceeded to hold that the situation very aptly called for application of the following remarks by D'Smith in his book 'Constitutional and Administrative Law' : "In some situations where unconstitutional action has been taken by person wielding effective political power, it is open to a Judge to steer a middle course. He may find it possible to ask that the frame work of the pre-existing order survives but the deviation from these norms can be justified on the grounds of necessity. The. Principle of necessity, rendering lawful what would otherwise be unlawful is not unknown to English law ; there is a defence of necessity, albeit of uncertain scope, in criminal law and in constitutional law, the application of Martial Law is but an extended application of this concept. But the necessity must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the supersession of the Legal Order ; it is essentially a transient phenomenon."

Their Lordships thereafter proceeded to summarise the legal position emerging from the above discussion as under :- "(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 ;

(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 ;

(b) All acts which intend 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

(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 purpose of restoration of democratic institutions wider 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 ; and

(v) That the superior Courts continue to have the power of judicial review to Judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article I99 of the Constitution as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance.

' This last point needs a little explanation. In the body of this judgment opinions of certain textbook writers and contemporary jurists have been quoted in support of the proposition that the Courts established under the pre-existing Legal Order continue to have the power and jurisdiction to adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for a specified and limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle of sales popali, supreme lex, the superior Courts continue to remain Judges of the validity of the actions of new regime in the light of the doctrine of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity.

' There is yet another, and a stronger reason for holding that the power of judicial review continues.

The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stand combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March, 1977 but no such considerations arose in regard to the judicial organ of the State.

' Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away.

' Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation, the fact remains that the ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to anyone in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim Community), and provide an effective safeguard for the rights of the subject. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts."

' My Lord then proceeded to examine the provisions of the Proclamation as well as the Laws (Continuance in Force) Order, 1977, in the light of the principles stated above. Mr. Sharifuddin Pirzada described the instrument as supra-constitutional as in his view they overrode the 1973 Constitution and were binding on everyone by virtue of their own force. His Lordship repelled the contention and held that as the power of courts to test the validity of all actions of the C. M. L. A. On the touchstone of necessity remained, he would describe them as instrument of extra- constitutional nature to conform to the description of action by virtue of which the C. M. L. A. Had assumed the administration of Pakistan and finally went on to say at page 719 of the judgment that the proclamation described in legal form the extra-constitutional action which the C. M. L. A. Had taken on the ground of necessity and held it valid for that reason, namely, `necessity'. In other words, their Lordships rejected the contention that it was valid by virtue of its own force, dehors the doctrine of necessity. Similarly, dealing with the Laws (Continuance in Force) Order, 1977, my Lord the Chief Justice held that it was primarily designed to give effect to the purpose of the proclamation, and as it was an offspring of necessity the superior Courts continue to have the power of judicial review, notwithstanding any thing to the contrary contained in this order, to test the validity of its provisions and any action taken thereunder in the light of the principles regulating the application of the law and doctrine of necessity set out earlier.

' Here, a word of explanation may be called for. It may well be asked that when the legal position emerging was so lucidly, if I may say so with respects summarized in the conclusions stated in the judgment, where was the necessity of referring to the arguments of the learned counsel and the discussion in the body of judgment. To this, I would humbly reply that I have done so as I thought it necessary for proper understanding of the conclusions and that it would be relevant in the context of the present issue before this Court as almost all the learned counsel heavily relied on the contentions raised by Mr. A, K. Brohi and the learned Attorney-General and the manner in which they were repelled. If, however, it is still thought that it was not required, the excess may be condoned.

' It will thus be seen that the Supreme Court after determining the legal character of the present interim regime and the status of the two Instruments, viz. The Proclamation and the Laws (Continuance in Force) Order, 1977, determined the scope of powers exercisable by the C. M. L. A. To those of performing acts and promulgating measures as falling within recognised scope of the law of necessity, as enumerated in category (iii) at page 716 of the judgment. It will however, be noticed that the Supreme Court while conceding the above said powers to the C. M. L. A., went on also to lay down in the subsequent conclusion (v) at the same page of the judgment, as a concomitant of exercise of such powers, that superior Courts will continue to have the power of judicial review of judging the validity of any act or action of the Martial Law Authorities. If challenged in the light of Principles underlying the law of necessity and their power under Article 199 of the. Constitution would remain available to them to their full extent and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. And as would have been further noticed, the raison-a-etre of the above principle laid down by their Lordships was that several textbook writers and contemporary jurists had supported the proposition that the Courts established under the pre-existing legal order continue to have the power and jurisdiction to Judge the validity and effectiveness of new legal order, and as the present regime was temporary for specified and limited purpose and represented not a new legal order but only a phase or constitutional deviation dictated by necessity, superior Courts continue to have the power of judicial review under Article 199 of the Constitution to their full extent.

' That being so, the premises remaining the same, the principle laid down above by the Supreme Court would, indeed, prevail during the entire period of Constitutional deviation as a basic arrangement and it will not be permissible to anyone in the regime, including the President, to take away during the said period the power of the superior Courts under Article 199, of judging the validity of all the acts and actions of the Martial Law Authorities during such period.

' The power of judicial review of the superior Courts under Article 199 was upheld by the Supreme Court on the further principle of trichotomy of State powers. Their Lordships observed :- "There is yet another, and stronger reason for holding that the power of judicial review continues.

The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity the executive and the legislative power now stands combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March, 1977 but no such consideration arose in regard to the judicial organ of the State.

Accordingly on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution be taken away". (Underlining* is by me).

' The observation underlined* above appear to me be very significant, in that, they rule out possibility of power of judicial review of superior Courts under Article 199 being taken away by the present regime at any stage during their tenure, for the reasons that, firstly, the powers exercisable by the regime are limited to those falling within the law of necessity, *(Here in italics] ' Secondly, it had survived the initial take over for lack of State necessity and, thirdly, it will upset the trichotomy structure of the Constitution which, as held by the Supreme Court, is still the Supreme Laws of the land, subject to the condition that certain parts thereof have been held in abeyance.

' This is not all. The Supreme Court went further to uphold the power of judicial review of the Superior Courts for yet another important reason which may be reproduced in their Lordships' words as under :- "Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to be available under the new dispensation, the fact remains that the ideology of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law and not accountable to anyone in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim Community), and provide an effective safeguard for the rights of the subject. On this principle as well, the power of judicial review for judging the validity of the actions of the Martial Law Authority must continue to remain in the superior Courts."

' The principle stated above is also not without significance. The opening lines of the above paragraph would indicate that the Courts had envisaged the situation as has presently arisen due to the present amendment in question, but their Lordships went on to forestall and lay down that even in such a situation happening, the superior Courts will continue to have the power of judicial review to Judge the validity of the actions of the Martial Law Authorities, and the reasons assigned are such as cannot be denied by any Authority in Pakistan whose ideology is based on Islam.

' Article 199 of the 1973 Constitution provides that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts in Pakistan. That being so, the principle of law enunciated above by their lordships in regard to the judicial power of review of the superior Courts under Article 199 of the Constitution of judging all actions of Martial Law Authorities would be binding on this Court.

' It may be re-called that the aforesaid principle of law was laid down by the Supreme Court in answer to the contention raised by Mr. A. K. Brohi and the learned Attorney-General that the Laws (Continuance in Force) Order, 1977, was binding on every one by virtue of its force and therefore, the jurisdiction barring provisions contained therein had to prevail and the Court, therefore, had no jurisdiction to Judge the validity of the actions of the Military Authorities. The preamble of the Amendment Order in question would show that for its making it derives power from Laws (Continuance in Force) Order, 1977. As such, the President could claim no higher power than the C.

M. L. A. Had on 5th of July, 1977. Now, when the power of excluding the judicial power of review of the superior Courts under Article 199 was denied to the C. M. L. A. And the jurisdiction barring provisions contained in the Laws Continuance in Force) Order 1977, were held to be not valid in the context of the legal character of the regime and the powers exercisable by him during the period of Constitutional deviation, it cannot be accepted that the President could legally arrogate to himself the same power to take away the judicial power of review of the superior Courts under Article 199 by enacting the similar jurisdiction barring provisions through the instrument which for its making derived power from the Laws (Continuance in Force) Order, 1977. In other words, the jurisdiction of the superior Courts under Article 199 having been upheld by the Court, notwithstanding the similar barring provisions contained in the Laws (Continuance in Force) Order, 1977, the same could not be taken away by the present Amendment which for its source of power draws on the Laws (Continuance in Force) Order, 1977. It is a well-settled principle that what cannot be done directly, cannot be done indirectly.

' It is true that the Amendment Order contains non obstante clause which seeks to take away the effect of the judgment in Begurn Nusrat Bhutto's case in respect of the power of judicial review of the superior Courts under Article 199, upheld by the Court. It will, however, be noticed that the mandatory power was conceded to the C. M. L. A., not as a constituent power enjoyed by the Parliament functioning under the Constitution when the constitution is in full operation, but on the doctrine of necessity. As such, its exercise would be not without constraints and would be limited to the specified fields and purposes falling within the law of necessity as and where dictates of necessity so required. That being so, the Supreme Court having in no uncertain terms laid down that the power of judicial review of superior Courts under Article IS9 remains intact and available to them to their full extent and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential. Order or Ordinance, and that on no principle of necessity can the said power be taken away, which principle was laid down as applicable.- during the entire period of Constitutional deviatior as a basic arrangement, this Court cannot but decide the question raised by applying the principle of law laid down above by the Supreme Court in the case of. Begum Nusrat Bhutto, it being the mandate of Article 189 of the Constitution, which indeed holds the filed, that any decision of the Supreme Court shall, to the extent it decides a question of law or is based upon or enunciates a principle of law shall be binding on all other Courts in Pakistan.

So viewed, I am clearly of the view that in whatever other field the mandatory power co-deeded to the President/Chief Martial Law Administrator may or may not be exercisable, it certainly could not be exercised to amend the Constitution so as to take away the power of Judicial review R of the superior Courts vested in them under Article 199 of the 1973 Constitution during the said period. As a consequence, it has to be held that the amendment in question and the non obstante clause were beyond the competence and the power of the President, and are thus invalid.

' Although it has been held above that taking away of the judicial power of review was beyond the amendatory power of the President, it will be pertinent to refer to the subsequent case of Mr. Z. A.

Bhutto v. State, wherein their Lordships have explained the effect of their conclusions in the case of Begum Nusrat Bhutto, regarding the power of the C. M. L. A. Under the doctrine of necessity. At page 58 of the report their Lordships after reproducing the passage categorizing the permissible acts and legislative measures recognised under the law of necessity made the following observations : "These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra-constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work for the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity. The word 'necessity' has, therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning.

' It is also necessary to state that, as pointed out by this Court in a slightly different context in the case of Mir Abdul Baqi Baluch v. The Government of Pakistan PLD 1968 SC 313 'under a constitutional system which provides for a judicial review of an executive action, it is a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of a judicial authority reviewing executive actions to sit in appeal over the executive, or to sub titute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied." We may add that the material in question may either be provided by the authority whose action is challenged, or it may be such of which the Court can take judicial notice, as was done by this Court in the recent case of Begum Nusrat Bhutto.

' As to what is reasonable and what is not the observations made by Hamoodur Rahman, J., (as he then was) in the case of Abul A'la Maudoodi v. The Government of West Pakistan PLD 1964 SC 673 provide a useful guide, namely : ' But what is the test that the Courts are to apply in determining what is or is not reasonable.

Obviously this cannot depend upon the notions of reasonableness of individual Judges, for, one Judge may well regard that as reasonable which another regards as unreasonable. Nor is the opinion of the Legislature conclusive on this question. The reasonableness must, of course, be judged by the standards of an ordinary prudent and reasonable citizen Reasonable is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances."

' It may be pointed out here that the above observations were made in relation to a different type of legislation, and not of the kind which is in question before us, namely, the constitutional amendment, seeking to take away power of judicial review of superior Courts under Article 199.

Therefore, while considering application of the above observations to the questions before us, the passage reproduced above from the judgment of Begum Nusrat Bhutto categorizing the permissible acts and legislative measures recognised under the law of necessity, have to be read subject to the further principle laid down in the subsequent paragraph (v) of the conclusions at page 716 of the judgment that the powers of the superior Courts under Article 199 of the Constitution remain intact to their full extent, notwithstanding anything to the contrary contained in any M. L. R. Or orders, Presidential order or Ordinance. So, considered, the above quoted observations, in my humble view, will not apply in the present case, it having been held that it was beyond the powers of the President to legislate on this subject of power of superior Courts under Article 199 of the Constitution, Assuming however, that the present amendment is to be examined the the light of the test laid down by their Lordships, it cannot be maintained that the power of the Courts is limited to merely finding whether the ., impugned act falls within any of the categories mentioned by their' Lordships.

Suppose an amendment were to provide that henceforth Pakistan will be a secular State or were to remove Article 4 from the Constitution or were to change the Federal Structure of the State or were to relate to the change of form of Government or the concept of franchise which are fundamental features of the Constitution, as observed in Fazlul Quader Choudhry v Mr. Muhammad Abdul _ Hague (1), can it be maintained that even in such a case all that the Court has to do is to find whether it falls in one of the categories, and if it so finds, it has to stop there only. I humbly think not.

If that were to be so, the consequences can best be imagined. Further, the amendments, as will be seen from the Amendment order reproduced above, place so vast an area of orders and actions taken by the authorities thereunder beyond the scrutiny of judicial review by the superior Courts under Article 199, that if they were to be upheld, it will not be possible to apply the test of necessity even as a term of art to such acts or actions of the Martial Law Authorities or of persons acting under their authority, with the result, T that the authorities will be the sole Judge of the necessity of their own acts on their own subjective satisfaction, and thus render the rule laid down in the case otiose and upset the rationale of both the judgments in point. It cannot be, therefore, maintained that all the Court has to do is to find whether the impugned act falls under one or the other categories enumerated by the Supreme Court. Faithful reading of the judgment in the case would show that it has been provided therein that even if the impugned act falls within the category, test of reasonableness has to be applied.

' The above cited observations of their Lordships came up for interpretation before the Full Bench of this Court in the case of Mumtaz Ali Bhutto v. Deputy Martial Law Administrator (2). My Lord the Acting Chief Justice, (as he then was) had this to say in regard thereto.

"While on this subject I must take notice of the argument advanced

(1) P L 1963 SC 487 (2) PLD 1979 Kar. 307 by the learned Attorney-General. He urged before us that the Supreme Court in the judgment in the case of Begum Nusrat Bhutto had recognised a power in the Chief Martial Law Administrator to amend the Constitution. He went on to state that the concept of necessity governing the power to amend the Constitution had again been discussed by the Supreme Court in the case of Mr. Zulfiqar Ali Bhutto v. The State PLD 1978 SC 40. He has relied on a paragraph appearing at page 58 of the said report to demonstrate that if the amendment in the Constitution is relatable or bears nexus to any of the acts, permitted to be done by the Chief Martial Law Administrator, the acts shall be presumed to be a product of State necessity. I find it difficult to construe the judgment in the case of Mr. Zulfiqar Ali Bhutto in the manner the learned Attorney-General would wish to have it construed. In the very paragraph on which the learned Attorney-General has relied the tests of validity are that such action should be in the public interest and aimed at achieving the objectives of Martial Law. It cannot be said that if the action of the Chief Martial Law Administrator falls within any one of the categories considered in isolation it is presumed to satisfy the test of necessity, regardless of the reactions on other conclusions Tecorded by Supreme Court. Iy we are to agree with such interpretation then the power that has been conferred on the Chief Martial Law Administrator to amend the Constitution would virtually operate to confer on him the power in do anything that he thinks best and render the power of judicial review nugatory. That would mean that he was the only Judge of his actions. That may even be meant to imply that the powers of the Courts could be curtailed by hint because even such powers come from the Constitution. In these circumstances it would be difficult to reconcile the various other clauses as are contained in the conclusions recorded by their Lordships in the case of Begum Nusrat Bhutto. On reading the two judgments of Begurn. Nusrat Bhutto and Mr. Zulfiqar Ali Bhutto together I am clearly of the view that amendments in the Constitution can only be justified on grounds of necessity."

(Underlining* is by me).

' Fakhrudin G. Ibrahim, J. In the same case interpreted the above observation as under :- "The aforesaid passage as was pointed by Mr. Abdul Hafeez Pirzada and so also Mr. Muhammad Ali Saeed, the learned amicus curiae cannot be read in isolation. Even the Supreme Court does not appear to have followed the principle that once there is nexus between the impugned measure and the permissible actions, there is no need for any further inquiry. In the above case the main question before the Supreme Court was whether in terms of President's (Post-Proclamation) Order No, 4 of 1977, read with the relevant provisions of the Constitution, it was permissible for one person to combine the functions and duties of two constitutional offices, namely, the Acting Chief Justice of the High Court and the Chief Election Commissioner. The conclusion reached was that the appointment of Mr. Justice Mushtak Hussain as Chief Election Commissioner was in the nature of a temporary and ad hoc appointment in a situation not covered or contemplated by the Constitution of 1973 and that it was merely intended for the limited purpose of *[Here in italic] ' holding the forthcoming General Elections and, therefore, it was not an appointment to which the prohibition contained in Article 216 of the Constitution was attracted. Every contention raised on behalf of the petitioner in the above case in relation to Post-proclamation Orders 4 and 5 of 1977, though on the subject of elections was sought to be justified first by reference to the Constitution and whenever there was departure from the Constitution on the ground that the Orders clearly fell within the objectives for which the Martial Law was imposed on the country on the 5th of July, 1977, to ensure the restoration of democratic institutions under the Constitution. In other words the Supreme Court was not satisfied in concluding the controversy by a statement that there was nexus between the Presidential Orders and the permissible action, which sufficiently answered the test of necessity. It may also he noticed that following the passage quoted above the Supreme Court reiterated the extent of the High Court's jurisdiction under Article 199 in the case of Mir Abdul Baqi Baloch v. The Government of Pakistan PLD 1968 SC 313 and in the case of Abul A'la Maudoodi v. The The Government of West Pakistan PLD 1964 SC 673."

' It was further observed : "In Begum Nusrat Bhutto's case the Supreme Court approved the following summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court as embodying the true essence of the doctrine and providing useful and practical guidelines for its application :

(a) An imperative and inevitable necessity or exceptional circumstances ;

(b) No other remedy to apply ;

(c) The measure taken must be proportionate to the necessity ; and

(d) It must be of a temporary character limited to the duration of the exceptional circumstances.

' The Supreme Court also approved the following remarks made by DE Smith in his book 'Constitutional and Administrative Law' `In some situations where constitutional action has been taken by person wielding effective political power, it is open to a Judge to steer a middle course. He may find it possible to ask that the frame work of the pre-existing order survives but the deviation from these norms can be justified on the grounds of necessity. The principle of necessity, rendering lawful what would otherwise be unlawful is not unknown to English law ; there is a reference of necessity. Albeit of uncertain scope, in criminal law and in constitutional law, the application of Martial Law is but an extended application of this concept. But the necessity must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review of acquiescence in the supersession of the Legal Order ; it is essentially a transient phenomenon.

' To my mind the aforesaid pre-requisites would become meaningless, if our jurisdiction was merely limited to finding a nexus between the impugned measure and the permissible action. As was pointed out by Mr. Muhammad Ali Saeed if the argument of the learned Attorney-General is accepted an amendment made to the Constitution by the C. M. L. A's. Permissible act, will have to be automatically accepted as necessary and the Court will have no jurisdiction to examine its justification which is surely not the law laid down by the Supreme Court, for it will make redundant the test of necessity laid down in.Begum Nusrat Bhutto's case."

' In the same case, I. Mahmud, J. Observed as follows : "There is no doubt that Martial Law Order 12, is law passed by a competent Legislature even though it is by an individual person. For these reasons, the third submission of Mr. Pirzada based on Article 4 cannot be accepted. However, I have had some anxiety, because it would follow from this view that there would be no restriction upon the Chief Military Authority to make any despotic or tyranical law which may deprive persons of their lives and liberty. But I do not think that there would be such practical danger, because the power of judicial review of the superior Courts is in full force to strike down such laws on the touchstone of necessity."

' It would appear that 1. Mahmud, J. Interpreted the observations of the Supreme Court in Mr. Mumtaz Ali Bhutto's case to be laying down the test that if it can be shown that the law reasonably falls within one or the other of the categories set out in the Begum Nusrat Bhutto's case, then it must be construed as being necessary, whereas truely he applied his mind to the nature of law in question and held that the law fell within the category (iii)(d) as a measure tending to establish or leading to the establishment of the declared objectives of the Proclamation of Martial Law, of restoration of law and order and normalcy in the country and the earliest possible holding of free and fair elections. He further held that there existed no detention law covering the subjea-matter relating to "acts prejudicial to the purposes for which Martial Law has been proclaimed". This would clearly show that the learned Judge in fact had applied the objective test of the law of necessity in reaching his conclusion that the law in question was validly made.

' It will be further noticed in this very case of Mr. Zulfigar Ali Bhutto, their Lordships referred to the case of Mir Baqi Baloch v. Government of Pakistan, while laying down the scope of judicial review. In the last said case it was observed at page 322 : "Can the High Courts be expected to be satisfied on the mere impse dixit of the detaining authority ? If this could be so, then this `judicial power' would, as pointed out in that case, be 'reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction', for imposing restraints on the enjoyment of the fundamental rights of citizens' and Article 2 of the Constitution itself would be 'rendered meaningless'. If the mere production of an order of a detaining authority, declaring that he was so satisfied was to be held to be sufficient also to 'satisfy' the Court then what would be the function that the Court was expected to perform in the discharge of this duty."

' His Lordship went on further to observe ; "If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act."

' As to what constituted reasonable or not, reference was also made by their Lordships to the case of Abul A'la Maudoadi v. The Government of Pakistan, wherein his Lordships referring to the case cited by their Lordships clearly stated that the opinion of the Legislature as to the reasonableness of the impugned legislation is not conclusive on the question.

Viewed in the light of above, I have no hesitation in holding that every act or legislative measure of the present regime if challenged has to be judged in the light of the principles laid down by their Lordships asi to whether it reasonably fails within the scope of their authority. Further, as was argued by Mr. A. H. Pirzada, category of acts and measures mentioned in (iii) (a) at page 716 in the Begun Nusrat Bhutto's case if taken by itself would give total power to the C. M. L. A. Surely, therefore, the subsequent categories mentioned in (b)(c)(d) on the same page of the judgment would not extend his power, but only restrict such power. And then, if that were not so, what would be the purpose of defining the said subsequent categories, and what would remain of the law of necessity and the finding by the Supreme Court that the present regime represents not v a new legal order but a phase of constitutional deviation. Yet another reason would be that if the executive acts covered by clauses (b), (c) and (d) of category (iii) have been subjected to the test whether the acts tend to advance or promote the good of the people or are required to be done for ordinary orderly running of the state, it cannot be maintained that exercise of the constituent power of amending the constitution of the highest importance will not be subject to any limitation.

Indeed, the measure of amendment has also to satisfy the same test of necessity as stated above.

' There now remains the question that even if it were to be assumed that the present amendments relating to power of judicial review could be made, it will be a question for consideration whether they fall within the test of reasonableness laid down by the Supreme Court. Unfortunately, we have nothing before us except the two speeches of the C. M. L. A. Which were, very kindly, supplied to us by the Government Advocates who beyond doing that very openly stated that as counsel for the respective Governments they would argue nothing, answer no question and would only say that the petition had abated.

' Out of the two speeches supplied to us, one of the 16th October, 1979 is not pertinent to the present case. The speech speaks of necessity for establishing Military Courts with exclusive jurisdiction for trial of offences punishable under Martial Law Regulations or orders or any other law for the time being in force. The question in the present case, however, is whether there are reasonable grounds for taking away the power of judicial review of the superior Courts under Article 199 in relation to the proceedings taken or judgments and sentences passed by the Military Courts. Here notice may be taken of the contention of Mr. G. H. Abbasi. He contended that Martial Law was temporary and as such it cannot justifiably produce in the shape of the present amendment a permanent constitutional measure to outlive itself and to perpetuate Militaty dispensation of justice after Martial Law is over. Mr. Kamal Azfar's contention was that necessity for such kind of legislation would be justified only when the Courts have ceased to exist.

' The reasons assigned in the speech of 3rd June, 1980 may be summarised as under :- "(1) Judicial system is complicated and it takes lot of time and money to get justice

(2) To eradicate some serious crimes it was necessary to award instant punishment to criminals.

(3) Interference of civil Courts in the proceedings of the Military Courts resulting in non-fulfilment of expectations of people to get swift justice

(4) To make Martial Law more effective and provide speedy justice. Article 212-A was added to the Constitution and grave cases were tranderred from the jurisdiction of civil Courts-but yet the object of the amendment was not achieved as civil Courts started issuing stay orders on the judgments of Army Courts.

(5) It was decided therefore that the jurisdiction of Military Courts should be reduced and restricted to only eight grave crimes instead of thirty-five and the decision of Military Courts in cases relating to these crimes have been taken out of the jurisdiction of the civil Courts.

(6) What is required is that there should be no interference in the few cases that come up for hearing in Military Courts.

As will be seen, the first four categories relate to the amendment introducing Article 212-A in the Constitution. It has never been disputed that special Courts or tribunals may he set up with exclusive jurisdiction for special matters to provide speedy justice. Transferring the jurisdiction from the ordinary criminal Courts to Military Courts, therefore, did not affect High Court's power under Article 199. Same would be the position regarding the fifth class of reasons. Thus, there remains only the last reason at (6) above which is relevant in so far as the present amendments are concerned.

' Now, to consider the reasonableness of the present amendment in the light of the reasons given above, it is not enough to take into consideration only the present position as to the cases which are cognizable by the Military Courts. Article 212-A gives power to the Military Authorities to establish Military Courts for the trial of offences punishable under Martial Law Regulations and also under ordinary law. Under sub-clause (2) of Article 212-A, the jurisdiction and powers of the Military Courts can be specified by a Martial Law Order and in doing so the jurisdiction of the Military Court can be extended to cover any offence under the penal laws of the country. At present number of offences have been made triable by Military Courts under Martial Law Order 77 issued by the C. M. L.

A. Thus, Martial Law Orders although being sub-constitutional measures can effectively extend or restrict the jurisdiction of the Military Courts as thought fit,- and in this process it will be possible to exclude the judicial review by a superior Court of the proceedings in connection with any criminal case. It is in this perspective that the question of Constitutional jurisdiction or the power of judicial review of the High Court has to be examined, and this has to be construed in the light of the nature and scope of its powers under Article 199 of the Constitution. It is well-settled that a superior Court while acting in exercise of its jurisdiction under Article 199 does not act as a Court of appeal but comes in only in case of x lack or excess of jurisdiction or . When the proceedings of such Court are coran non judice. Reference may be made in this context to the observations of Bashiruddin, J. At page 819 in the case of Mir Hassan v. State (1): "We have no cavil with this proposition of law that no Martial Law Regulation or Order could be challenged in this Court, but it must be remembered that there is nothing in the Proclamation or the Provisional Constitution Order or the Martial Law Regulations which bars the superior Courts of the country from interpreting the Martial Law Regulations. It is inherent jurisdiction of the superior Courts of the country to interpret law. If an order is passed by a Martial Law Authority or a Military Court which is in excess of or without jurisdiction its legal position is open for examination by the High Court, or the Supreme Court, though these Courts would not and could not interfere if the order in question was one with jurisdiction and had the sanction of the Provisional Constitution Order behind it. This was the view that prevailed in a parallel situation under the old Martial Law of 1958 with the High Court of West Pakistan in cases Manzoor Elahi v. The State PLD 1959 Lah. 243 and Sher Mi.Hammad v. Nasir-ud-Din PLD 1960 Lah.

583. In any event, the question of the scope and effect of the Martial Law Regulations would be eminently fit for determination by the superior Courts with a view to adjudge whether an order purporting to have been passed under a particular Martial Law Regulation was with or without jurisdiction."

Accordingly, when the High Court exercises its such jurisdiction, it only aids the administration of justice, and it cannot be suggested that the Military Authorities would want the Military Courts to outstep their jurisdiction and act in breach of mandatory provisions of law and procedure which they are legally bound to observe. If, therefore, it was thought by, the Authorities that jurisdiction in some case had not been exercised by a superior Court strictly within the scope stated above, it would not justify taking away altogether the power of judicial review of the superior Courts in the stated terms. And then, even in such cases the Authorities had their remedy before the Supreme Court. Further, Article 199 while conferring power on superior Courts also guarantees a constitutional swift remedy to a citizen in appropriate cases of lack or excess of the jurisdiction on the part of the Military Court, and as the present amendment seeks to take away that remedy from him without providing any similar remedy under the law, it cannot be said to satisfy the test of reasonableness laid down by the Supreme Court in the said case. As such, it cannot be upheld on this ground as well ' Thus, having considered the matter in the light of the principles laid down by the Supreme Court in the case of Begum Nusrat Bhutto, I would answer both the questions in the negative.

' ABDUL HAYEE KURESHI, C. J.-This Full Bench has been constituted to answer the following two questions :- "(1) Whether the powers of this Court under Article 199 of the Constitution have been taken away in respect of cases arising out of

(1) PLD 1969 Lah. 786 or in relation to convictions, sentences and proceedings recorded, pending or taken by the Military Courts ?

(2) Whether the pending petitions in relation to the cases mentioned in question No, 1 above have abated ?"

2. It is necessary to briefly state some facts which ultimately resulted in the making of this reference. Ever since the promulgation of Martial Law Order No, 4 by the Chief Martial Law Administrator, Military Courts were established throughout the country. These Courts started trials for offences. Most of the trials were by the Summary Military Courts and since there was no provision for appeals, jurisdiction of this Court under Article 199 of the Constitution was invoked by the aggrieved persons. In the meantime, judgment in the case of Begum Nusrat Bhutto, was delivered by the Supreme Court and it was held by the Supreme Court that in spite of the imposition of Martial Law the superior Courts continue to have the power of judicial review to Judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the Law of Necessity. The Supreme Court further ruled that the powers of the superior Courts under Article 199 of the Constitution remained available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. The constitutional petitions therefore, continued to be entertained by this Court. It was on 16-10-1979 that the Constitution was amended by inserting Article 212-A to provide for a partial ouster of jurisdiction of the High Courts in respect of cases decided by the Military Courts. It seems, the Chief Martial Law Administrator and President had desired to achieve the object of the High Court abstaining from exercising jurisdiction in respect of cases tried before a Military Court. A Division Bench of this Court consisting of Agha Ali Haider C. J. And A. V. Akhund, J., heard several Advocates on the point of ouster of jurisdiction, complete or partial as a consequence of insertion of Article 212-A in the Constitution. The learned Judges of the Division Bench came to the coiclu3ion that Article 212-A did not create a bar on jurisdiction of the High Courts in regard to judicial review in respect of convictions and sentences passed or awarded by the Military Courts. A copy of this judgment was placed before a Division Bench consisting of Mr. Justice Zaeeduzaman Siddiqui and myself and we found that the basic question in regard to the competence and validity of this provision was not decided by the Division Bench and we recommended constitution of a bigger Bench, preferably of five Judges to examine the question. This reference of the Division Bench was laid before Mr. Justice Agha Ali Haider on 15- 5-1980 and an order was passed on the same day to the effect that the papers concerning this reference may be put up after the summer vacations viz. After 7-8-1980.

' Again, on 27-5-1980, the President, by the Constitution (Amendment) Order (President's Order No, 1 of 1980) amended Article 199 of the Constitution by inserting clauses (3-A), (3-B) and (3-C) in the said Article of the Constitution. These provisions were designed to obtain a complete ouster of jurisdiction of the High Court in respect of and relating to the validity or effect of any judgment or sentence passed by a Military Court. The full text however, shall be reproduced in a subsequent paragraph of this judgment. After the enactment of the said President's Order amending Article 199, a Constitutional Petition No, 942/1980 was placed before a Division Bench consisting of myself and Mr. Justice S. A. Nusrat. On 2-6-1980, we took notice of the amendment and referred to this Full Bench for decision the following two questions, namely :-

(1) Whether the amendments made by the Constitution (Amendment) Order of 1980, inserting clauses (3-A), (3-B) and (3-C) of Article 199 of the Constitution are valid ?

(2) Whether this Court has jurisdiction to hear petitions, whereby convictions, or proceedings before Military Courts, including Summary Military Courts, are challenged ?

3. The Full Bench sat on 3-6-1980 and after hearing the Advocates, particularly, Mr. Khalid Isbaque, Mr. Abdul Hafeez Pirzada and the Advocate-General, recast the questions referred and framed the two questions which now call for an answer by this Full Bench. In regard to the competence of the Full Bench to amend the questions there can be no doubt and if authorities are needed reference may be made to Farid Khan v. The State (1) and .136khshi Rustam Ali v. Province of West Pakistan (2). We amended the original questions as the petitions which are before us arise only out of convictions and sentences passed by Military Courts. We did not therefore, think it proper to refer for decision to this Full Bench the validity of all the three clauses recently inserted in Article 199 of the Constitution. It is not necessary to refer to any other categories of cases which are not before us. The Advocates had however, made a grievance that on the answers in the present reference would depend the answers in regard to the jurisdiction of this Court in relation to other cases which are referred to in the three clauses of Article 199 of the Constitution. We are of the view that the reference need not be so broad as to consider questions involved in cases which are not fixed before us. Manifestly that would prejudice the parties in other cases and we will wish to avoid that.

4. It is necessary to reproduce the Constitution (Amendment) Order 1980, in extenso and the same is reproduced herein below "THE CONSTITUTION (AMENDMENT) ORDER, 1980 President's Order No, 1 of 1980 ' 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 President is pleased to make the following Order:-,

(1) Short title and commencement.-(1) This Order may he called the Constitution (Amendment)

Order, 1980.

(2) Amendmenr of Article 199 of the Constitution.-In the Constitution, in Article 199, after clause (3), the following new clauses be inserted, namely :- (3-A) Notwithstanding any judgment of any Court, including any judgment ; in respect of the powers of Courts relating to judicial review, a High Court shall not, under this Article- (11 PLD 1960 Lah. 957 (2) PLD 1965 Pesh. 31

(a) make an order relating to the validity or effect of any Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder :

(b) make an order relating to the validity or effect of any judgment or sentence passed by a Military Court or Tribunal ;

(c) grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal ; or

(d) issue any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either.

(3-B) Every such order, injunction or process as is referred to in clause (3-A) made, granted or issued at any time before or after the commencement of the Constitution (Amendment) Order, 1980, shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including the Supreme Court and a High Court, shall abate.

(3-C) The Proclamation of the fifth day of July, 1977, all President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders made on or after the fifth day of July, 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made."

5. 'Several Advocates have addressed us but the main contentions have been furnished by Mr. Khalid Ishaque and Mr. Abdul Hafeez Pirzada. Both of them have clearly stated before us that the Chief Martial Law Administrator, who is also the President of Pakistan, has the power to amend the Constitution. They however, contend that the exercise of this power is not uncontrolled and is circumscribed by various factors. Mr. Khalid M. Ishaque; has stated that the power to amend the Constitution or to make other legislative instruments is dependent on the existence of material which would satisfy a reasonable man that for the purposes of restoration of democracy such legislative measure was necessary. Additionally, it is contended by him that the maker of the law has to show that the proposed legislative measure did not command or demand anything more or less than what was absolutely necessary for the achievement of the given object. He went on to contend that it is not merely the subjective satisfaction to assessment of the situation demanding a legislative measure by the maker of the law but he has to satisfy the superior Courts on the criterion of a reasonable person that such necessity does indeed exist as to demand the legislative measure.

6. Mr. Abdul Hafeez Pirzada has contended before us that the amending order is ultra vires the powers of the President and therefore, void on the following grounds :-

(i) That under the law decared in Begum Nusrat Bhutto's case the President/Chief Martial Law Administrator does not enjoy the constitutional/legislative powers of a sovereign parliament as the power to amend the Constitution excludes any curtailment of judicial power of the superior Courts or any departure or derogation from the declared objects of Martial Law, namely, restoration of law and order and restitution of democratic institutions under the 1973 Constitution.

(ii) Subject to what is stated in No, I above the Supreme Court in Begum Nusrat Bhutto's case has not permitted any wanton or needless amendments of the Constitution and in any case the power to amend the Constitution is also circumscribed by the limitations of the amendment being within the limits and/or demands of State necessity to return the country to constitutional rule and further that constitutional amendments can be resorted to only if the present Constitution fails to provide a solution for attainment of the declared objectives of Martial Law.

' It has further been contended that the power to amend the Constitution as recognized by the Supreme Court in clause (iii) (a) at page 716 of the Supreme Court judgment in Begum Nusrat Bhutto's case is controlled by clauses (b), (c) and (d) in the same clause at the same page. It is further averred that the superior Courts have the power of judicial review to scrutinise legislative acts and functions performed by the Chief Martial Law Administrator/President and the validity of the amendments must, be positively upheld by the Courts ; and in case the superior Courts do not so uphold the validity, the provisions shall be null and void. Mr. Abdul Hafeez Pirzada has also contended that no amendment of the Constitution can be permitted if it destroys or tends to destroy the fundamental and basic structure of the Constitution. Lastly, he contends that the amendment is not a law within the meaning of Article 4 of the Constitution and therefore, cannot be permitted to operate to the detriment of citizens.

7. To our mind, the basic questions based broadly and enveloping all facts that arise in this case are the following :-

(1) Whether the President/Chief Martial Law Administrator has the power to amend the Constitution ; and

(2) Whether the amendment can be struck down on any ground other than competence ?

8. In order to determine whether the Chief Martial Law Administrator/President has the power to amend the Constitution it must be stated straightaway that the learned counsel have not challenged that the power to amend the Constitution does vest in the Chief Martial Administrator/ President. In that regard the judgment in the case of Begum Nusrat Bhutto is very clear. At page 716 of the report it has been stated as follows :-

(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 recognized 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;"

9. It would thus be clear that even on the doctrine of necessity it has been consistently recognized by the judicial authority that the Chief Martial Law Administrator has the powers to do all acts or take all legislative measures which are in accordance with, or could have been made under the 1973 Constitution including the power to amend the said Constitution. The separate mention of the power to amend the Constitution is indeed significant, when looked at in the background that the Constitution itself preserves the power of amendment. In consonance with the situation, the amendatory power is high-lighted. In regard therefore, to the basic and primary question of the power to amend the Constitution there is no controversy before us.

10. The learned Advocates have, however, contended before us that by the amendment the trichotomy of powers, judicially recognized as a basic feature in the structure of the Constitution has been destroyed. Mr. Abdul Hafeez Pirzada has referred to Article 4 of the Constitution and contended that the said Article recognizes such division of State powers. Although Article 4.Does not appear to fully support. Mr. Abdul Hafeez Pirzada we would all the same take the view that such trichotomy of powers in the executive legislative, and judicial field has been consistently recognized by the superior Courts of this country. Even at page 722 of A the report in the case of Begum Nusrat Bhutto such trichotomy appears to have been recognized by the Supreme Court in the following words :- "(v) That, accordingly, the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordidance."

11. The question then is whether the trichotomy has been destroyed or even impaired so that the basic features of the Constitution have been thrown overboard. Article 199 is enshrined in the Constitution to provide for a judicial review in respect of actions by the remaining two limbs or functionaries of the State. This provision had been amended by the Parliament of Pakistan on more than one occasion. The last of the occasions arose when Article 245 of the Constitution was amended. It is not necessary to reproduce the amendment in extenso but it must be stated that clause (iii) was inserted in Article 245 to provide that a High Court shall not exercise any jurisdiction under Article 199 in relation to the causes arising within the cities of Karachi, Hyderabad and Lahore, within which areas the Armed Forces were called to act in aid of civil power. Clause (4) of Article 245 was also amended to provide that any proceedings under Article 199 in relation to the said areas instituted on or after the day the Armed Forces were called to act in aid of civil power shall remain suspended during the period that the Armed Forces would be so acting. Such amendment was challenged before the High Court of Sind and a Full Bench of five Judges upheld the validity of the amendment. It must be seen that by insertion of clauses (3) and (4) in Article 245 what parliament intended was to oust totally the jurisdiction of the High Court in relation to such areas. A mass of Case Law was cited before the Full Bench. Notice was taken of the judgment of Supreme Court in the case of State v. Ziaur-Rehman (1), and the following

(1) PLD 1973 SC 49 ' passage was reproduced in the judgment of Abdul Kadir Shaikh, C. J. (as his Lordship then was) to base his conclusion:- 4 "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdic tion from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it 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 seeks 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 superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or super-natural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself

12. The learned Chief Justice had earlier delivered judgment in the case of Diwan Textile Mills Limited v. Pakistan (1). In that case, the Constitution (Fourth Amendment) Act, whereby the power of the High Court to pass interim orders had been drastically curtailed by the Parliament, came up for consideration and in that case Abdul Kadir Shah, C. J. Had considered the scope of amendatory constituent power conferred by Article 239 of the Constitution. Even in that case, the learned Chief Justice had expressed that "once a Constitution is framed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the Constitution, the people cannot thereafter exercise the power, and then the machinery that is provided for amending the Constitution has the power to amend the same." At this stage a reference must also be made to the case of Darwesh v. Federation of Pakistan (2). This case is also decided by a Full Bench of the Lahore High Court. The amendment of Article 245 was challenged.

Their Lordships of the Lahore High Court recognized the power of the Legislature to amend the Constitution although subject to some limitations of the nature that the basic structure, framework and essential features are not changed.

13. In fact, the Constitution which is a man-made document; can never be considered to be not amenable to amendment. The Constitution of United States of America, India, Australia and most of the other countries including Pakistan contains provisions for amendment and numerous amendments have been made, some very vital but still upheld. It would seem that the original makers of the Constitution have always had foremost in their minds the need to amend the Constitution in accordance with the circumstances. On the other hand, if the Constitution were to be a permanent document more detriment would be caused than benefit. It would be a static and, dead document, responding to no change in circumstances. Even Article 238 of the Constitution of Pakistan clearly envisages the power in the Parliament to amend the Constitution. In the United States of America where by habit or vocabulary the Constitution is called a rigid, orthodox document amendments are permitted and have been undertaken on numerous occasions. There can, therefore, be no two opinions

(1) PLD 1976 Kar. 1368 (2) PLD 1980 Lah. 206 that the person or persons having ultimate legislative authority in the country can always amend the Constitution. The Supreme Court having ruled in the case of Begum Nusrat Bhutto that Chief Martial Law Administrator/President has the power to make laws and even to make amendments in the Constitution have recognized the same power and principle, B but made a deviation because the Parliament ceasing to exist the power to amend the Constitution vested in favour of the Chief Martial Law Administrator/President. This point, therefore, need not detain us an further.

14. The next question, which is the moot and crucial question in this case is in regard to the scope of amendments in the Constitution. The Constitution (Amendment) Order of 1980 has been reproduced in paragraph 4 hereinabove. Before we proceed to discuss this question it would be worthwhile elucidating the main canons of argument advanced at the bar. It has been contended by the learned Advocates that the amendments have the effect of total divestiture of jurisdiction of this Court in such cases in which the trials are held by a Military Court. In that context it is sub= mitted that the legislation seeks to destroy or at least to materially impair the trichotomy of powers as between the executive, Legislature and the judiciary. Additionally it is contended that the powers of the Chief Martial Law Administrator President in the matter of legislation are limited in the sense that his powers cannot be called supra constitutional powers as would enable him to legislate in all or any manner. It has been pointed out that validity was conferred on the assumption of power by the Chief Martial Law Administrator on the ground of State necessity and every act that he takes and every action that he performs has to be Judged on the touchstone of necessity and public good or ordinary orderly running of the State or advancement of the process to restore democratic institutions or to avoid deadlock in cases where the Constitution fails to provide a remedy or measure.

15. We propose to examine the second part first viz, the powers of the President/Chief Martial Law Administrator in; the field of legislation. Martial Law was proclaimed on 5th day of July, 1977, and by the proclamation the Parliament and Provincial Assemblies were dissolved. Many State functionaries including the Prime Minister and the Chief Ministers ceased to hold office. As a result a total vacuum came to exist in the legislative field and as far as the executive field was concerned the result was only slightly different. Begurr Nusrat Bhutto filed a petition in the Supreme Court of Pakistan under Article 184 of the Constitution challenging the detention of the former Prime Minister of Pakistan and some other leaders of the defunct Pakistan Peoples Party. The case involved many difficult questions of far-reaching constitutional importance including the assumption of power by the Chief of Army Staff as well as the imposition of Martial Law. The Government was represented by Mr. A. K. Brohi and Mt. Syed Sharifuddin Pirzada. Mr. A. K. Brohi convassed the view on the premises that the old legal order had been supressed or destroyed and in the new circumstances a fresh judicial concept had emerged so that with the successful revolution ushering, a justification for the same was available in its very success. The arguments were more or less similar to the arguments advanced in the case of State v. Dosso (1). Such arguments were repelled by their Lordships of the Supreme Court. Mr. Sharifuddin Pirzada, the learned Attorney-General, however, relied on the doctrine of necessity for tile

(1) PLD 1958 533 ' purpose of justification underlying the assumption of powers by the Chief Martial Law Administrator. The further contention of Mr. Sharifuddin Pirzada was recorded by his Lordship Mr. Justice Anwarul Haq, C. J. In the following words:- "It is contended by the learned Attorney-General that once the takeover is validated on the principle of necessity, then the Chief Martial Law Administrator would have the right to govern the country in any manner be thinks best, and the Courts in Pakistan will be bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as a supra- constitutional instrument, binding all authorities in Pakistan. He seeks to reinforce this submission by referring to the implication of Martial Law as described in Corpus Juris Secundum Vol. 93, and "Salmond on Jurisprudence", p. 190, 11th Edition."

16. The conclusions of the Supreme Court were recorded by his Lordship the Chief Justice on pages 715 and 716 of the report in the case of Begum Nusrat Bhutto. It would be profitable to reproduce the conclusions in the words of his Lordship. Those read as follows:- "As a result, the true legal position which, therefore, emergs 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 delegate 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;

(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 recognized 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

(d) All such measures as would establish or lead to the establishment of the declared objective 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 purpose 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 Regula, lions, or Orders, as the occasion may require; and

(v) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their lull extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulations or Order, Presidential Order or Ordinance."

17. The learned Advocates appearing for the petitioners have also referred to the summing up done by his Lordship the Chief Justice at page 721 of the report and they have particularly laid stress on paragraphs (iv) and (vi) of the same which read as follows:- "The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be summed up as follows:-

(iv) That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator 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.

(vi) That, accordingly, the superior Courts continue to have the power of judicial review to Judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance."

18. The learned Advocates have vehemently contended before us that while the President/Chief Martial Law Administrator has the power to perform all acts or undertake legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it, such acts or legislative measures or constitutional amendments-should be of a nature as would tend to advance or promote the good of the people or are required to be done for ordinary, orderly running of the State or would lead to achievement of the declared objects; underlying proclamation of Martial Law. In short, the argument is that the amendment of the Constitution should besides the test of necessity also fulfil at least one other teat that it should either be for the ordinary, orderly running of the State or should be for the purpose of achieving the object of the imposition of the Martial Law. They contend that the Supreme Court refused to recognise any extra-Constitutional power in the President/Chief Martial Law Administrator and had validated the deviation from constitutional scheme on some limited grounds and for limited purposes. In that context the judgment in the case of Begum Nusrat Bhutto; was referred to in a subsequent pronouncement of the Supreme Court in the case of Zulfikar Ali Bhutto v. The State, and his Lordship Mr. Justice Anwarul if Haq took notice of an apparent misconception in the mind of the counsel I appearing for Mr. Zulfikar Ali Bhutto in the matter of the true interpretation of the decision in Begum Nusrat Bhutto's case in so far as it related with the powers of the Chief Martial Law Administrator under the doctrine of necessity. His Lordship reproduced paragraph (iii) appearing on page 716 of the printed report in the case of Begum Nusrat Bhutto and interpreted the same in the following words:- "These categories of the various types of permissible actions were spelt out after a review of the leading authorities on the doctrine of necessity which purported to lay down that such actions would be construed or deemed to be necessary in the interest of the welfare of the people and the State. The reason underlying such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus held valid under the law of necessity. The word 'necessity' has, therefore, come to be used in this context as term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning."

' Further in the same judgment his Lordship stated as follows :- "It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Beg um Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article .199 of the Constitution."

19. The above quoted observations were further elaborated by his Lordship by stating that it was not for the Court to substitute its own opinion as to the arrangements/amendments necessary to be made in this behalf. All that the Court is to examine is whether the contemplated measures reasonably fall within the objective in question. The learned Advocates have however, referred to the judgment in the case of Mumtaz Ali Bhutto and another v. The Deputy Martial Law Administrator (1), a judgment of a Full Bench of the Sind High Court. They have made a pointed reference to paragraph 25 in the opinion recorded by me and paragraph 18 in the opinion recorded by his Lordship Mr. Justice Fakhruddin G. Ebrahim. These opinions were to the effect that it was incorrect

(1) PLD 1979 Kar. 307 ' to interpret the judgments of the Supreme Court on hypothesis that judicial review in regard to the actions of the Chief Martial Law Administrator would not involve the process of finding a justification underlying any act or legislative measure either on the ground of necessity or on the ground of public good or ordinary, orderly running of the State. However, these opinions were minority opinions in the said Judgment. Mr. Justice Abdul Kadir Shaikh, Mr. Justice I, Mahmood and Mr. Justice Z. A. Channa arrived at conflicting conclusions and recorded that if the action taken or legislation made by the President/Chief Martial Law Administrator reasonably fell within any of the four categories enumerated in paragraph (iii) appearing at page 716 of the report in Begum Nusrat Bhutto's case, no further examination was necessary to arrive at the conclusion that the piece of legislation was bad. However, it appears to us very clear that if an act! Or legislative measure satisfies any of the four tests enumerated in the caser, of Begum Nusrat Bhutto no need for any further inquiry into that aspect!' of the case would be called for. In any case the opinion of Mr. Justice Fakhruddin G. Ebrahim and my opinion was a ntionority opinion and therefore, we do not feel bound to follow the same, more particularly as the judgment in Begum Nusrat Bhutto's case was interpreted and explained by his Lordship the Chief Justice of Pakistan in the subsequent case of of Zulfikar Ali Bhutto. Mr. Pirzada has contended before us and had contended before the Full Bench that clause (iii) (a) at page 716 of the Begum Nusrat Bhutto's case conferred total power on the President/ Chief Martial Law Administrator and for such reason clauses (b), (c) and (d) have as of necessity to be read as qualifying or limiting clauses and not clauses designed to expand the scope of powers. Be that as it may we are bound to follow the Supreme Court judgment, more so when it has been interpreted by the same Court in a subsequent pronouncement. While on this topic I am also reminded of another judgment of mine in the case of Khudaidad v. Deputy Martial Law Administrator (I), which was written on behalf of the Full Bench. I had an occasion to examine the powers of the Chief Martial Law Administrator; vis-a-vis the doctrine of necessity and in that context the position had been stated as follows :- "In such circumstances this Court is not to sit in appeal from the action of the Chief Martial Law Administrator to find out whether all or any actions of his would be covered by unwritten law of necessity. Even otherwise we have known of several provisions in the various Constitutions of Pakistan when action was taken by any authority on being satisfied in regard to necessity of such action. It would indeed be perilous for the Courts to embark upon an enquiry which by its very nature will be subjective to find out if a necessity existed for the taking of any action."

20. On a consideration of the cases referred to; in the matter of limitations on the powers of the President/Chief Martial Law Administrator in matters of legislation the position that emerges is that the President/ Chief Martial Law Administrator has the power to legislate and even to amend the Constitution. Exercise of such powers would be considered valid in case a nexus could be found between the legislative measure and the permitted categories enumerated at page 716 of the report in the case of Begum Nusrat Bhutto. If anyone of these categories permits the legislation no further enquiry need be embarked upon. Even the word,

(I) PLD 1978 Quetta 177 "necessity" used by his Lordship the Chief Justice of Pakistan is a term of art. The conclusion therefore, has to be that the President/Chief Martial Law Administrator has the power not only to make sub-constitutional laws but even to amend the Constitution. In fact, amendment of the Constitution or at least deviation therefrom in relation to the provisions contained in the Constitution regarding the Parliament or Provincial Assemblies has already been validated. If any other amendments are made the basis of validation would only be what is enumerated by the Supreme Court itself in the case of Begum Nusrat Bhutto. We may, before parting with this point, also repeat that the learned Advocates never raised the point that the President/Chief Martial Law Administrator did not have the power to amend the Constitution. They only stated that such power was limited and was not co-extensive with the power of the Parliament in the matter of amendments. This point, to say the least, was not elaborated except by stating that the legislative measures have to be tested on the ground of necessity or public good or ordinary orderly running of the State or taking of action of or fulfilment of the ultimate object of Martial Law.

21. We now proceed to examine the next argument of the learned Advocates that the legislation in question tends to destroy or at least materially impair the trichotomy of powers recognised by several judgments of the superior Courts of this country and even the Constitution. They have urged that while it was stated by the Supreme Court in the case .Of Begum Nusrat Bhutto that the legislative and the executive have lost their moral content the Supreme Court has preseved the powers of the superior Courts in relation to judicial review. Since the power of the President/ Chief Martial Law Administrator to amend the Constitution has not been challenged by the learned counsel they were asked on what hypothesis could they advance the case that the amendment in question (so far as it relates to non-interference by this Court in cases arising out of convictions by the Military Courts) could be attacked. The learned counsel have pointed out the various provisions of Amending Order and stated that even in the clauses which are relevant for the purposes of the present cases the ouster of jurisdiction is complete so that the result was a deprivation of the right to invoke the jurisdiction of this Court in the given cases. They were in these circumstances, confronted with some weighty pronouncements of this High Court wherein the amendments made in the Constitution by the Parliament before the proclamation of Martial Law had been held valid.

Two out of these cases are the cases of Diwan Textile Mills Limited v. Pakistan and others and Alia:: Ahmed Khan v. Province of Sind and others (1). In the first of these cases the Constitution (Fourth Amendment) Act, was challenged as ultra vires and in the second the amendment of Articles 245 or the Constitution was challenged. Both these judgments are of Full Benches, in the first case consisting of 3 Judges and in the second consisting of 5 Judges, The judgments are unanimous.

Even in another case, namely, Darwesh M. Arbey v. The Federation of Pakistan, the question related to the amendment of Article 245 of the Constitution and it must be stated that while the petition of Darwesh was accepted by the Lahore High Court. On the point of the capacity of the Parliament to amend Article 245 of the Constitution the decision was against the petitioner. There was no discordant note as compared with the two judgments from

(1) PLD 1977 Kar. 604 the High Court of Sind. We now propose to examine the power of the Parliament to amend the Constitution and such examination will be useful as even today the powers of the Parliament' are exerciseable by the President/Chief Martial Law Administrator.

22. In the case of Diwan Textile Mills, insertion of clause 4(A) in Article 199 was challenged. By this amendment it was provided that in cases where orders are made, proceedings taken or an act is done by an authority or person under any law specified in Part I of the First Schedule of the Constitution or any such orders or proceedings or act relates to or is connected with, assessment or collection of public revenues, an interim order made by a High Court in matter relating to validity or legal effect of any such order or proceedings or act shall cease to have effect on expiration of 60 days from the date on which such interim order was made. The effect of the amendment was to virtually destroy the validity or effect of an interim order passed by a High Court because it would indeed be very rare that a constitutional petition under Article 199 of the Constitution would be decided by a High Court within 60 days. An argument was raised before the Full Bench of this Court on the premises that the amendment amounted to destruction of judicial power because if no interim protection is available the person affected is likely to suffer irreparably. Abdul Kadir Shaikh, C. J. (as the then was) repelled the argument in the following words :- "It is true that due to overload of the cases in the High Court's litigants do not expect prompt disposal of their cases but laws delays are only proverbial. That however, is beside the point, for, we are dealing with Constitutional issues. Since it is open to the High Court to pass the final order within the period of 60 days, the difficulty pointed out is regarding the disposal of the disputes within the period prescribed. Unless the petitioner is himself to be blamed, the complaint in regard to the delay in the disposal of the dispute would either lie on the High Court or the opposite-party.

High Court is not powerless to pass ex parte orders or such other orders in accordance with law if opposite-party be the defaulter. As regards the delay on the part of the High Court, I cannot conceive of lethargy or blame on its part to do justice in an appropriate case deserving disposal within 60 days. These are, however, not the aspects on which vires of a statute, not to speak of a constitutional provision, depends.

' There is, however, no gainsaying that practical difficulties have been created for the High Courts to be able to finally dispose of the cases of the categories which fall within the ambit of clause 4(A) within the period of 60 days, but I am unable to hold that by this the power of the High Court has been completely destroyed or annihilated.

' This is however, not to say that the jurisdiction vested in the High Court is not subject to curtailment by the process of amendment under Article 239 of the Constitution."

23. The two other Judges, Muhammad Haleem and Zakaullah Lodhi, JJ., agreed with his Lordship the Chief Justice. In this case their Lordships had also adverted to the provisions of Articles 238 and 239 of the Constitution and recognized the power in the Parliament to amend the Constitution.

Again in the case of Niaz Ahmed Khan the Full Bench of five Judges had the occasion of examining the Constitution (Seventh Amendment) Act, whereby clauses (2), (3) and (4) were added in Article 245 of the Constitution. Clauses (3) and (4) provided that during the period and within the area in which the Armed Forces of Pakistan are called to act in aid of civil power in pursuance of clause (1) of Article 245 all proceedings under Article 199 of the Constitution which already stand instituted or pending shall stand suspended for the period during which the Armed Forces are acting in aid of civil power. The effect of this amendment was that during the period and within the area in which the Army was called in aid of civil powers the High Court is to be denuded of all powers under Article 199 in relation to causes of action arising within those particular areas. It must be pointed out that at that time neither had any Martial Law been proclaimed nor did the bringing of Armed Forces in aid of civil powers amount to imposition of Martial Law, not to speak of the full force of the Constitution prevailing. In fact, the learned Judges erotically observed that no Martial Law had been proclaimed. Abdul Kadir Sheikh, C. J. (as he then was) adopted somewhat similar process of reasoning as in the case of Diwan Textile Mills cases. An argument was raised that by addition of clause (3) in Article 245 the power of the superior Courts had been trampled upon and the general scheme of the Constitution providing for trichotomy of powers had been impaired. The learned Chief Justice took the view that the encroachment upon High Court's jurisdiction was a stop-gap arrangement meant to last so long as the Armed Forces were acting in aid of civil powers. It will indeed be profitable to quote from the original judgment in that context. The relevant passage reads as follows :- "I do not see how an argument is available that the power of superior Courts in Pakistan has been trampled upon by the newly added clause (3) of Article 245 to the extent that having regard to the general scheme of the Constitution providing for trichotomy of powers, the Judiciary has been offended to the extent which is not permissible by the inherent juristic philosophy of the Constitution. I have already held that the encroachment upon High Court's jurisdiction under Article 199 is a stop-gap arrangement meant to last so long as the Armed Forces are acting in aid of civil power. I may add here that by its very nature the curtailment of High Court's jurisdiction cannot be of lasting nature, for, the express words 'for the time being' signify beyond doubt that the makers of the Constitution did not mean to deprive High Court of its jurisdiction for any length of period which may be viewed as permanent or even semi-permanent. It is also inherent in the scheme of Article 245 that the direction to call upon the Armed Forces to aid civil power is to last for such period as is essential and the newly added clause (4) further fortifies the view that the curtailment of High Court's jurisdiction is for a short and temporary period as any proceedings in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power is to remain suspended for the period during which the Armed Forces are so acting."

24. Agha Ali Hyder, J. (as he then was) in the same context expressed the opinion that the exercise of jurisdiction under Article 199 had not been totally overthrown. This judgment was also unanimous judgment. Even in the case of Darwesh M. Arbey the amendment of Article 245 was not held invalid. It seems a grievance was made in regard to some Army authorities undertaking jobs which were beyond the purview of the powers and the Lahore High Court looked upon it with dissatisfaction.

25. It would thus seem that in each one of these cases the foremost question was in relation to amendment of the Constitution, so as to deprive the High Courts of powers under Article 199, wholly or partially, transitory or permanent. The power of the Parliament, the relevant legislative organ has hardly ever been questioned. The Constitution itself recognises within the ambit of Article 238 a power in the Parliament to amend the Constitution. We had asked Mr. Abdul Hafeez Pirzada, who had stated before us that the power to amend the Constitution did vest in the President/Chief Martial Law Administrator, as to how the present amendment can be struck down as invalid even on the doctrine of trichotomy of powers. His argument was that there was a total withdrawal of power and therefore, the amendments were invalid. We have not been impressed because first of all these amendments are by their nature temporary. The President/Chief Martial Law Administrator had in his broadcast of 5th July, 1977, stated that as soon as may be he would hold elections and hand over power to the elected representatives of the people. Actually dates of elections were also fixed twice but for some compelling reasons the elections could not be held so that power has not yet been transferred to the elected representatives. However, there is no doubt that sooner ratner than later elections would be held and the State institutions would be re-born.

Martial Law will, therefore, have to be lifted and the Military Courts recalled. No doubt, a definite period has not been specified but from whatever angle the matter is looked at it would seem that even the present amendments in Article 199 of the Constitution are transitory by their very nature, for if Martial Law itself is lifted the Military E Courts automatically cease to exist. By their very nature these amendments are temporary and transient and will have effect only during the period of constitutional deviation. The situation is not different than the situation which the Full Bench of the Sind High Court examined in the case of amendment of Article 245. In fact, the situation as compared to clause (4-A) of Article 199 was a little less wholesome because that amendment created a permanent change in the Article.

26. We now proceed to consider whether the amendments in question are violative of the basis structure of our Constitution. Mr. Khalid M. Ishaque and Mr. Abdul Hafeez Pirzada have pointed out that trichotomy of powers is the basic structure in our Constitution. There can be no quarrel with that proposition which has been judicially stated more than once. But the other identical basic structures are no less significant as for example Fundamental Rights. Mr. Abdul Hafeez Pirzada has stated that Fundamental Rights are not the basic structure of the Constitution because at least the enforcement of those rights could have been suspended under the Emergency provisions contained in Articles 232 and 234 of the Constitution. The argument is not easy to assimilate because if the Constitution permits suspension of the right to enforce Fundamental Rights the same Constitution also provides for its own amendment. The Constitution is not a static document and the need for amendment is recognised in every country and that is why such amendatory provisions are contained in the Constitution. Reverting to the same point, we have no hesitation in holding that the Chapter on Fundamental Rights is the strongest pillar of our Constitution.

' Many of the Fundamental Rights are mentioned even in the Preamble to the Constitution when it states as follows: "Preamble.- ' Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed; ' Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah; ' Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and developed their cultures; ' Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; ' Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes."

27. It would be seen that the guarantee in regard to the Fundamental, Rights exists even in the Preamble. Now, the Supreme Court in the case of Begum Nusrat Bhutto clearly held that Funadmental Rights stand suspended. p If during the period of Martial Law Fundamental Rights, which, as stated F above, is the main corner stone of our Constitution could be suspended we see hardly any reason to hold that during the pendency of Martial Law Article 199 could not be amended.

28. The next argument advanced by the learned Advocates in this context is that according to the judgment of the Supreme Court the power to amend the Constitution was dependent on the existence of material which would satisfy a reasonable man that for the purpose of restoration of democracy such amendment was necessary. It has been additionally contended that no amendment could be held valid unless it could be justified on the ground of State necessity or was for public good or provided a bridge to enable the country to return to the path of constitutional rule. In that context, we have already examined the judgment in the case of Zulfikar Ali Bhutto wherein the conclusions recorded by the Supreme Court in the case of Begum Nusrat Bhutto were elaborated and explained. It would not be necessary to repeat the same. We would however, observe that if a power to amend the Constitution was recognised by the Supreme Court this Court cannot sit as an Appellate Tribunal to find out if the test of necessity or public good or achievement of the objects of Martial Law was fulfilled. In accordance with the Supreme Court judgment the President/Chief Martial G Law Administrator has the power to amend the Constitution. How, and G in what circumstances he would utilise that power has to be judged by him and we would reiterate what was stated in the case of Khudaidad v. The Martial Law Administrator, that embarking upon such an enquiry was' indeed a perilous path to tread. To say the least what may be reasonable in the view of one person may not be reasonable in the view of another. However, there have been two recent broadcasts by the President/Chief Martial Law Administrator, the first on 16-10-1979 and the second on. 3-6-1980 and in each one of these broadcasts some reasons have been assigned for amendments in the Constitution. In the latter broadcast the President/Chief Martial Law Administrator stated as follows:- "To provide speedy justice to the people and to make Martial Law effective a clause was added to Article 212 of the Constitution at the behest of concerned persons, whereby those grave cases were transferred from the jurisdiction of civil Courts which were either under hearing in the military Courts or could have been heard in the military Court. It is regrettable that the purposes for which the amendments were made were not achieved as civil Courts started issuing stay orders on the judgment of the army Courts. The inevitable result was that the Martial Law authorities as usual remained ineffective and people remained deprived of justice. It is a matter of conjecture as to who benefited from this? The dacoits, the murderers, the abductors or the poor people? Several hindrances have been created due to this action. Many cases which were under hearing have remained undecided.

' A few days ago we examined this situation again and after detailed consideration, I and my colleagues arrived at the conclusion that it is no service to the nation and the country that the people should be denied their right and justice on account of the intricacies of rules and regulations. Accordingly, in these circumstances, the unavoidable decision had to be taken that the jurisdiction of military Courts should be reduced and confined to only eight grave crimes instead of 35, and the decisions of military Courts in cases relating to these crimes have been taken out of the jurisdiction of civil Courts. Civil Courts will, as usual, continue to deal with all the remaining cases.

' Our motive behind these measures is neither to curtail the powers of the judiciary nor to hurt their respect. We only want that it a person indulges in smuggling, corruption or commits dacoity he should be punished without delay. We only want that if a miscreant tarnishes the chastity of a woman he should be awarded deterrent punishment to prevent others from resorting to such acts.

' We only want that if a cruel and callous person kidnaps the son or daughter of a man, he should immediately be punished for this heinous crime. Is it justice that you see a dacoit committing daring dacoity but you cannot punish him simply on the ground that thousands of cases are already pending with the Court for hearing? Is it a law that an innocent person is torn to pieces in broad daylight but the heirs of the victim should go on waiting for years to get justice? What kind of supremacy of law it is that a person openly indulges in anti-State activities but you cannot lay your hands upon him because a Court has released the person on bail simply on the ground that the case was heard by a military Court? Such law and procedure certainly require to be revised. Not only this. But there are many other examples. A few days ago a man was murdered in Quetta in broad daylight but this case is still pending with the Court till today. With all respect to the judiciary I promise you to rid the nation from such professional criminals and Insha Allah so long as responsibility rests with me I will try my utmost to discharge this duty to the maximum."

29. The above quotations from the President's speech on 3-6-198( detail some reasons which have pursuaded him to make the amendment in question. Now, the question is whether we would be justified in entering upon an enquiry to determine the correctness or validity of these reasons for upholding or striking down the amendments. In our view, such a path is not permitted.

30. There have been some arguments in regard to the jurisdiction of this Court. Such arguments have been propounded on the basis of opinions of authors. To put it briefly the argument is that the High Court being a Court of general jurisdiction has to act untrarnelled by the limitations which regulate the jurisdiction of inferior Courts. Perhaps the conception is that the High Court as the superior Court has jurisdiction to determine its own jurisdiction. There is a theory about the superior Courts laying down the rules of validity of legislation, but not being governed by these rules. In our view, clause (2) of Article 175 of our Constitution is a complete answer. It reads as follows :- "No Court shall have any jurisdiction save as is or may be conferred on it by the. Constitution or by or under any law."

31. It would thus be clear that the High Courts are not the functional organ which have to determine their own jurisdiction. The High Courts are as much a slave of the Constitution and the law as any other Court and their powers are regulated by law or the Constitution. We can do no better than quote from the Supreme Court's judgment in the case of State v. Ziaur Rahman, wherein the question of powers and jurisdiction of the Supreme Court was explained in the following words :- "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution ; that it derives its powers and jurisdiction from the Constitution ; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it 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 meam 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 bill by virtue of the fact that it is a superior Court set up by du Constitution itself. It is not necessary for this purpose to insole any divine or super-natural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself."

32. The next argument in point was that even the Laws (Continuance in Force) Order of 1977 was not considered to be a supra-Constitutional provision and for such reason the Presidential Order by which the Constitution was amended could not be considered to be having an higher status. In our view, this question has been fully dealt with by the Supreme Court in the case of Begum Nusrat Bhutto and needs no further reply. It may also be pointed out that Article 2(1) of the Laws (Continuance in Force) Order, 1977, clearly provides that even the Constitution would be applicable subject to any order made by the President. The next argument is that the amendments in question tend to totally destroys the powers of the superior Courts under Article 199 of the Constitution and by such deprivation the trichotomy of powers judicially recognised over the years has been thrown overboard and this amendment therefore is also destructive of the basic features of the Constitution. Aid in support of the argument has been sought from the case of His Holiness Kaesa Vananda Bharti v. State of Kerala and another (1), a judgment of the Supreme Court of India.

In this case, the question before the Supreme Court of India was whether the provisions relating to the amendment of the Constitution conferred a power on the Parliament to exercise constituent powers in a manner as to take away or abridge the fundamental rights as guaranteed by the Constitution of India. In an earlier case of the same Court, namely, Sankari Parsad Singh v. Union of India (2), it had been held that an Act of the Parliament amending the Constitution was valid even if it curtailed any of the fundamental rights. Again in a subsequent case of Gokal Nath v. Province of Punjab (3), it had been ruled by the same Court that the provisions enabling the Parliament to amend the Constitution cannot be so utilised as to impair the basic structure and framework of the Constitution. The Supreme Court of India was considering the powers of the Parliament to amend the Constitution in a manner as would tend to alter the concept of fundamental rights. There was divided opinion. Sikri, C. J. Held the opinion that the Constitution (29th Amendment) Act of 1971 was ineffective to protect the impugned acts if they abrogate or take away fundamental rights. Shelet and Grover LI, held the amendment valid but still left the question in regard to change in the basic elements in the constitutional structure for decision of the Division Bench that would come to deal with the individual cases. The sum and substance of these cases was that the Constitution of India like the Constitution of Pakistan contained both the power and procedure to amend the Constitution so that even the Articles relating to fundamental rights could be amended. A rider was however recognised that the amendments should not be of a nature as would alter the basic structure or framework of the Constitution. The question then arose what is basic structure and framework of the Constitution. Hegde and Mukherjee, JJ. In paragraph 682 of their opinion expressed that "the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our policy, the unity of the country, the essential features of the individual freedoms secured to the citizens". It was further opined by the learned Judges that the Parliament did not have the power to revoke the welfare state and egalitarian society. Such basic features as have been mentioned have been termed by the learned Judges to be illustrative and not comprehensive. However, it would be seen that the Supreme Court of India recognized the power of the supreme legislative body in that country in

(1) AIR 1973 SC 1461 (2) AIR 1951 SC 458

(3) AIR 1967 SC 1463 ' the matter of amendment of the Constitution and reserved only a bare nucleus in regard to the existence of the State and held such fundamentals as not amenable to amendment. Even if we apply the principles of this case to the present case it would appear that the amendment in question does not alter the basic character of our Constitution. We also cannot overlook the fact that the suspension of right to enforce fundamental rights has already been upheld by our Supreme Court in the case of Begum Nusrat Bhutto, and the present amendment is far less consequential.

33. The grievance of the learned Advocates appearing in this case is that the amendments in question have the effect of destroying the trichotomy of powers. They have stated that the Military Courts are the limb of executive and since the amendment took away the power of the superior Courts to judicially review the findings and sentences of the Military Courts, the third limb viz. The judiciary has been paralysed. In our opinion the proposition is stated with a high magnitude of exaggeration. First of all the cases which are tried by the Military Courts are far too few. Recently M.

L. 0 No, 77 has been promulgated which limits the jurisdiction of the Military Courts to a limited class of cases. Such cases are of treason, subversion, sedition, sabotage, seducing members of the Armed Forces or persons in the employ of Government, murder, rape, unnatural offence, kidnapping, bribery, robbery, smuggling, black-marketing and a few other cases. There is also no total ouster of the ordinary Courts in these cases because the civil Courts continue to function.

What is more that jurisdiction is ousted only when M. L. O. No, 77 is fully complied with. It is common knowledge that very few Military Courts have been established. It would thus be seen that only a fractional number of cases will be tried by the Military Courts so that the deprivation of jurisdiction is neither total nor sizeable.. It is in these cases alone that the powers of judicial review by High Courts have been taken away. It is, therefore, incorrect to state that by this amendment trichotomy of powers has been destroyed or displaced so that a basic feature of the Constitution has been impaired. Needless to say that even in the limited class of cases some senior officers in the Martial.

Law Administration would have to select ;he cases which would he tried by the Military Courts. We also point out that exceptions in the applicability of Article 199 are not unknown and find a place in the Article itself. Clause (3) of the said Article excludes the Armed Forces from invoking the said Article in respect of their terms and conditions of service or in relation to any matter arising out of service, or in respect of any action taken against such member of the Armed Forces in relation to his occupation. In service matters again bar is imposed by Article 212. More exceptions were brought in by the Constitution (Fourth Amendment) Act, and Constitution (Fifth Amendment) Act. It is, therefore, incorrect to say that by denying the protection of Article 199 to a given class of people and in limited circumstances, any basic feature of the Constitution was impaired or destroyed. In so stating we are fortified by the view taken by this High Court in the case of Diwan Textile Mills and Niaz Ahmed Khan.

34. The arguments before us also centred on the textbooks, "Jurisdiction and Illegality" by Rubinstein or on some foreign cases, namely, ex pane Milligan (4 Wall. 2, 18 Lawyers Big Ed. 281), Reid v. Covert (1) and some other cases. While the case of Milligan was referred (1) (1955) 354 U S 1 to by Mr. G. H. Abbasi, the case of Reid was referred to by Mr. Abdul Hafeez Pirzada. These cases are from foreign jurisdiction and the learned Advocates on being asked whether the jurisdiction of the Courts who had decided these cases was limited by a provision of the nature of Article 175(2) of our Constitution, the learned Advocates replied that the powers of the Courts that decided these cases was not circumscribed or hedged by provisions of the nature referred to in Article 175(2). That makes all the difference and the other point that is very pertinent is that validity has been conferred on the Martial Law regime by the Supreme Court.

35. The next grievance of the learned Advocates is that the amendment also destroyed the effect of the judgment of the Supreme Court in the case of liegum Nusrat Bhutto. They particulary referred to clause (5) appearing at page 716 of Begunt Nusrat Bhutto's case which has been reproduced in paragraph 10 of this judgment. They have next pointed out that the opening words of clause (3-A) of Article 199 has recently amended) exclude the application of the powers of judicial review despite judgment of any court. In other words, the contention is that although the power of judicial review was preserved by the Supreme Court judgment the same has been taken away by this amendment. On being asiced whether the Legislature could legislate in a manner as would deprive a judgment of its force the learned Advocates could do no better but state that such power was available to the Legislature. They however, reiterated the same point that the exercise of that power should not be so wide as migin impair the basic structure of the Constitution. We are of the view that. The Legislature has the power of legislating in such a manner as would either give effect to a judgment of a Court or as might efface the force of a judgment. No quarrel can be found with such a proposition and therefore, this argument is also hardly of any avail.

36. Lastly, a reference was made to a Division Bench judgment of this Court in an unreported judgment in Constitutional Petition No, 141/1979. This judgment was delivered by Agha Ali Hyder, C. J.

With whom A. V. Akhund, J. Agreed. The Bench was considering the Constitution (Second Amendment) Order, 1979, whereby Article 212-A was inserted in the Constitution, to provide for a partial exclusion of the jurisdiction of the High Court in matters arising out of judgments and sentences passed by the Military Courts. In this judgment, reliance was mainly placed on the case of Begum Nusrat Bhutto as also the judgment in the case of Malik Mir Hassan and another (1). The learned Judges did not consider the question about the legislative power of the President/Chief Martial Law Administrator to amend the Constitution. However, the learned Judges came to the conclusion that despite insertion of Article 212-A in the Constitution the pending petitions had not abated. In the present case the questions are primarily concerning the legislative authority of the President and the nature of the amendment. To elaborate, whether the President had the power to amend the Constitution and whether the amendment was of such a nature as was expressly or impliedly forbidden by the Constitution or for any other reason. This judgment is hardly of any avail to the learned counsel appearing in the case. This judgment was also referred to for another reason. The counsel stated that the State had filed an appeal before the Supreme Court which has

(1) PLD 1969 Lab. 786 been numbered as C. P. S. L. A. No, K-113/1980, and in that appeal leave had been granted so that the Supreme Court was seized of the question in regard to the validity of Article 212-A. Of the Constitution. We have read the order of the Supreme Court granting leave and have noticed that among others their Lordships of the Supreme Court took notice of an argument on behalf of the State that the point of force of Article 212-A of the Constitution had not been considered by the Sind High Court Division Bench. In the present case w e are dealing with an entirely new amendment so that while the question that fell for determination before the Supreme Court may have identity with the questions involved in this reference, still in our humble opinion there was no bar to the decision on this reference.

37. Lastly we may state that Mr. Ali Ahmed Fazeel, Mr. A. I. Chundrigar and Mr. Syed Inayat Ali, who respectively appeared for the Federal Government, the Province and the Deputy Attorney-General have only stated that these petitions have abated and when asked to elaborate they stated that they had instructions only to make such a statement and do no more.

38. To conclude we are of the opinion that the President/Chief Martial Law Administrator has the power to amend the Constitution, that this Court would not sit to find out if the law of necessity warrants such amendment or that the amendment was justified or not by reason of having been made for public good, or for achieving the objects of Martial Law. We are also of the view that in the circumstances, trichotomy of powers has not been displaced or impaired because the amendment is of a transitory nature and will become ineffective with the lifting of Martial Law. We, therefore, hold that the amendments are valid and all the petitions arising out of proceedings to which the jurisdiction of Military Courts extends abate. The two questions referred to the Full Bench are therefore, answered in the affirmative.

39. On the conclusion of the hearing we have had by a short order answered the questions in the reference. When the order was pronounced the Advocates made an oral request for grant of a certificate in terms of sub-clause (i) of clause (2) of Article 185. We are of the view that the case does involve a substantial question of law as to the interpretation of the Constitution and we, therefore, grant the certificate, as prayed.

' S. A. NUSRAT, J.-I agree.

' SAEEDUZZAMAN SIDDIQUI, J.-I agree.