' MUHAMMAD ZAHOORUL HAQ, J.--Mr. Riaz Qadir Brohi, holding brief for Mr.Muhammad Ali Sayeed, has filed an application for adjournment made by Mr.Muhammad Ali Sayeed, counsel for the petitioners, on the ground that he is busy in some other matter which is going on from day to day before Mr.Justice Nasir Aslam Zahid. This petition was filed in August, 1977, and it was once amended in 1978 and then amended in December, 1979, and has been pending since then and has been adjourned on a number of occasions on the ground that' Mr.Muhammad Ali Sayeed was either sick or busy before another Bench. On 16-12-1980, Mr.Muhammad Ali Sayeed was busy before another Bench. Again on 20-1-1982, the counsel was busy before Supreme Court. Even on 3-3-1982, he was busy before another Bench. On 9-8-1982, the Advocate-General, Sind, was busy but Mr.Muhammad Ali Sayeed also requested for adjournment. On 7-2-1983, petitioners' counsel again requested for adjournment on personal ground. On 7-3-1982, again a request was made for adjournment on the ground that the petitioners' counsel was busy before another Bench. On 22-8- 1983, the matter was again adjourned because Mr.Muhammad Ali Sayeed was not present, and Mr.Yahya Bakhtiar had also gone out. On 12-9-1983, Mr.Muhammad Ali Sayeed requested for adjournment as he wanted to seek instructions from the petitioners. On 15-2-1983, Mr.Muhammad Ali Sayeed left a slip of engagement before the D.B. III, and therefore, the matter had to be adjourned. On 18-4-1984, the petitioner's counsel was confined to bed and, therefore, the matter was adjourned. Of course, on 10-10-1984, the petitioner's counsel as well as the Deputy Attorney- General made a joint request for adjournment.
2. This matter has, therefore, been adjourned from 1980 to date almost mainly on the ground of the absence or engagement of the petitioner's counsel, and we have again this request from the learned counsel today that he is busy before the Hon'ble Single Judge. We are not inclined to adjourn the matter any more and it was for the petitioners or the learned counsel to make arrangements for the conduct of the case before us if the counsel was not able to come personally. Repeate requests for so many adjournments for such a long period create an impression that the petitioners or her counsel is not serious in pursuin the matter and is avoiding to appear in the case. We, therefore, declined the request for adjournment. In any case no useful purpose can b served by further adjournment as the matter stands concluded by the judgment of the. Supreme Court in PLD 1983 SC 457 and also o account of the provisions of P.C.O. Of 1981.
Mr.Liaquat Merchant, Deputy Attorney-General, and Mr.Sayeed A.Shaikh, Advocate-General, Sind, have opposed the petition.
3. The petitioner as Chairman of the Peoples Foundation has challenged the take over of Peoples Foundation and its property by respondents. The respondent No,3 had ordered for inspection of accounts of People Foundation Trust on 22-8-1977, and on 26-8-1977 M.L.O. 26 was promulgated by M.L.A. Zone "C" which had provided that all records including accounts-books of Peoples Foundation Trust will be taken over by Martial Law Authorities for the purpose of investigation into alleged irregularity committed in the affairs of the said Trust and that all movable and immovable properties of the aforesaid Trust will also remain under control of Martial Law Authorities. On 27-8- 1977, the accounts of the Trust were removed by respondent No,3 in pursuance of M.L.O. 26 as alleged by the petitioners.
4. On 30-8-1977, the petitioners filed this petition challenging the actions taken by respondents and for a declaration that M.L.O. 26 and order of 22-8-1977 be declared to be illegal. On 15-10-1977, M.L.O.
21 was issued by C.M.L.A., providing that Board of Trustees of the P.F.T. And Board of Directors of other institutions connected therewith stood suspended forthwith and Members of the said Board of Trustees of P.F.T. Including the Chairman thereof and Members of Board of Directors of other such institutions should cease to function as such. It was further provided that powers or functions of the Board of Trustees and Board of Directors were to be exercised by the C.M.L.A. Or a person appointed by him.
5. The petitioners, therefore, amended their petition and challenged 21 issued by C.M.L.A. Thereafter, on 20-3-1978, the President of Pakistan promulgated P.O. No,4 of 1978, called the Zulfiqar Ali Bhutto Trust and Peoples Foundation Trust (Renaming as Administrative Order 1978). In .Article 4 of this Order it was provided that the Peoples Foundation Trust shall be known as the Shaikh Sultan Trust and the Deed of the said. Trust, dated 9-8-1973 was to stand amended accordingly and that all the powers and functions of the Board cf Trustees of the aforesaid Trust and Board of Directors of other institutions in connection therewith shall vest in and be exercised or performed by a Board of Trustees composed of such persons as the President may from time to time appoint. The petitioners accordingly amended their petition for the second time and included a challenge to Presidential Order No,4 of 1978.
6. The petitioners have made several allegations against the C.M.L.A. Of general nature and mala fides which are hardly relevant for the purpose of considering the vires of the promulgation of M.L.O. 21 or P.0.4 of 1978. They have alleged that the making of the said laws is mala fide and motivated by bias against the petitioner and her husband.
7. The basic question is whether this Court has any authority or jurisdiction to invalidate the laws.
Made by C.M.L.A. Or the President of Pakistan.
8. Article 15(i) of the Provisional Constitution Order of 1981 has validated all or.Ders and Martial Law Regulations and Martial Law Orders and all laws made by the President and C.M.L.A. And they cannot be called into question in any Court on any ground waatsoever, notwithstanding the judgment of any Court. Moreover, sub-Article (5) of the same Article 15 of P.C.O. Prohibits any Court including the Supreme Court and the High Court from making any order relating to the validity or effect of any order of Martial Law Regulation or Martial Law Order made by C.M.L.A. Or M.L.A. Or of anything done or action taken or intended to be done or taken thereunder.
9. The total effect of P.C.O. Of 1981 is that the jurisdiction of this Court has been taken away in respect of the validity, the making or effect of any M.L..0. Or Order, or Martial Law Regulation or Martial Law Orders made by C.M.L.A. Or President of Pakistan or M.L.A. Upto 20-4-1981, when P.C.O. Of 1981 was promulgated. All the laws challenged in this petition have also been made and enforced by the C.M.L.A. Or the President or M.L.A. Before 24-8-1981, and hence this Court has no jurisdiction to declare that M.L.O. 26 made by M.L.A. Zore "C", in August, 1977 or M.L.O. 21 issued by C.M.L.A. On 15-10- 1977 or P.O. No,4 of 1978 issued by President of Pakistan was in any way invalid or without lawful authority. Consequently, this petition is without any force and has to be dismissed.
10. We may also observe here that in PLD 1977 SC 657 (716) in the case of Begum Nusrat Bhutto, the Supreme Court of Pakistan held that superior Courts have jurisdiction to scrutinize an action taken by Martial Law Authorities. That was a judgment before the P.C.O. Of 1981 and now the position has been changed and P.C.O. Of 1981 holds the field and excludes jurisdiction of the High Court or the Supreme Court in respect of the validity of Martial Law Regulation or Order of President.
Superior Courts have ceased to have the powers of judicial review to judge the validity of any Act or action of the Martial Law Authorities of Presidential Orders.
11. In PLD 1983 SC 457 Fouji Foundation and another v. Shamimur Rehman, the Supreme Court had confined the scope of powers of superior Courts and the following passage quoted from PLD 1973 SC appearing on page 546 of the said report is quite illuminating.
"Therefore, when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instrument as void, 'it is not because the judicial power is superior in degree or dignity to the legislative power' but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits."
I' In the same case the Supreme Court has made the following observations in respect of competence of legislative and motives of legislation on pages 576-577:- "In the case of State v. Zia-ur-Rehman, Hamoodur Rahman, C.J., held that the judicial power could not be exerted beyond what the constitutional provisions required, as would appear from his observations at page 70 of the report: 'On the Other hand it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limitation of the Constitution. Again if a law has been competently and validly made, the judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions. The Legislature has also every right to change, amend or clarify the law if the judiciary has found that the language used by the Legislature conveys an intent different from that which sought to be conveyed by it. The Legislature which establishes a particular Court may also, if it so desires, abolish it.'
'The words 'competently' and 'validly' here have reference to the authority of the particular Legislature to legislative in regard to legislative lists and other constitutional limitations. Clearly from these observations the exertion of the legislative power, either by the elected assembly or the President is not made dependent on any motive, wisdom, policy or implicy or any rule of jurisprudence etc. And further it seeks to avoid a conflict between the two functional organs of the State. (See also Umyal Achi, Tariq Transport Co. v. Sargodha-Bhera Bus Service, Mr. Fazlul Qadir Choudhry v. Mr. Muhammad Abdul Hauge and Mr.A.K. Fazlul Quadir Choudhry v. Syed Shah Nawaz.
Again the observations of Hamoodur Rehman, C.J., undoubtedly bear out that the constitutionality of an act depends upon the exercise of power within constitutional limits and not upon motive or any other consideration."
12. These questions of the Supreme Court had been made in a case where the petitioner, Shamimur Rehman, had alleged mala fide against the law taking over the Sugar Mills of the petitioners- therein promulgated by Mr.Zulfiqar All Bhutto as C.M.L.A. Where it was alleged that legislation made by C.M.L.A. Was mala fide on account of the grudge which Mr.Zulfiqar Ali Bhutto had against Mr.Inamur Rehman Alvi, the father of the petitioners in that case. The Supreme Court had negatived the contentions of the petitioners in that case in clear and forthwith terms and had held that a Court was not called upon to go into the mala fides of the legislation.
13. In the present case, before us, the petitioner has also challenge the mala fide of the legislation made by C.M.L.A. Or President of Pakistan by order in regard to Peoples Foundation. But in view of the provisions of P.C.O. Of 1981 as well as in view of the Supreme Court Judgment cited by us above namely, PLD 1983 SC 457, we could no probe into the mala fide or pry into the motives of said legislation. This petition is accordingly found to be without merit and is here by dismissed.