' NAIMUDDIN, C. J.-The petitioner has filed a constitutional petition under Article 199 of the Constitution of Islamic. Republic of Pakistan, 1973, on 19-12-1985, wherein he has claimed that the order of the dispensation of his service is without jurisdiction and without lawful authority. It may be mentioned that the petitioner's services were dispensed with under the Martial Law Regulation No,
52. He questioned the same before the Federal Services Tribunal in an appeal but the appeal was dismissed on the ground that it was hopelessly time-barred and the condonation of the delay was refused on the ground that the same was not satisfactorily explained and for the further reason that Article 15(5) of the Provisional Constitution Order, 1981, bars the jurisdiction of the Tribunal.
2. The office has raised objection to maintainability of the petition in view of the provisions of Article 15(5) of the Provisional Constitution Order, 1981, and Article 212 of the Constitution and has stated that the remedy lies to the Supreme Court.
3. Before we could hear the objection the learned counsel for the petitioner has filed an application under Order VI, rule 17 read with section 151, C. P. C., read with Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking addition of the following grounds in the petition:- "(hh) that the Article 270-A of the Constitution 1973, is pure and simple subversion of the Constitution. Unconstitutional void ab initio and patently beyond the scope of the doctrine of necessity enunciated in Begum Nusrat Bnutto's case viz. PLD 1977 SC page 716, read with PLD 1969 SC 241, PLD 1973 SC page 49 etc., and of no legal consequence, rendering the so-called Referendum extending the life of the President of Pakistan, in consequence thereof, being itself opposed to the very ideology of Pakistan for which the Pakistan was created, and generally the whole of Eighth Amendment being unconstitutional, unwarranted and subversion pure and simple, for multiple reasons.
(hhh) That the very mode of Katcha Peshi is unwarranted and uncalled for, having no legal and/or constitutional sanction and warrant and in the ultimate analysis being pure and simple v,aste of the time of the Hon'ble Court. It is all the more so as it is beyond the scope of High Court Rules on the subject."
4. By the first ground the petitioner seeks to question the validity of Article 270-A of the Constitution which was substituted by the Constitution (Eighth Amendment), 1985. Article 270-A reads as follows :- "270-A. Affirmation of President's Orders, etc.-(1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.
0. No, 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia-ul-Haq became the President of Pakistan on the day of the first meeting of the Majlis-e-Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P. O. No, 14 of 1985), the Constitution (Second Amendment) Order. 1985 (P.
0. No, 20 of 1985), the Constitution (Third Amendment) Order 1985 (P.
0. No, 24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: ' Provided that a President's Order, Martial Law Regulation, or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to make such provisions as facilitate, or are incidental to, the revocation. Of the Proclamation of the fifth day of July, 1977.
' All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of power as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever.
(3) All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
' Ex,anation.-In this clause, "competent authority", means,-
(a) in respect of President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders and enactments, the appropriate Legislature ; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend, the same vests under the law.
(4) No suit, prosecution or other legal proceedings shall lie in any Court against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (I), (2) and (4), all orders made, proceedings taken, acts done or purporting to be made taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
(6) Such of the President's Orders and Ordinances referred to in clause (I) as are specified in the Seventh Schedule may be amended in the manner provided for amendment of the Constitution, and all other laws referred to in the said clause may ' be amended by the appropriate Legislature in the manner provided for amendment of such laws. Explanation.-In this Article, "President's Orders" includes "President and Chief Martial Law Administrator's Orders" and "Chief Martial Law Administrator's Orders".
5. Mr. Liaquat Merchant, learned Deputy Attorney-General opposes the application and actually objects to the maintainability of the petition/ application as according to him under Article 270=A of the Constitution all the Martial Law Orders, President's Orders and laws made between 5-7-1977, and the date on which Article 270-A came into force have been affirmed, adopted and declared, notwithstanding any judgment by any, Court, to have been validly made by competent authority (Legislature) and notwithstanding anything contained in the Constitution shall not be called in question in any Court on any ground whatsoever.
6. In view of the aforesaid provisions which have been incorporated in the Constitution by the Constitution (Eighth Amendment) Act, 1985, passed by Majlis-e-Shoora (Parliament), we are of the opinion, that the amendments sought are, firstly, irrelevant to the real questions involved i,e, whether from the impugned order the appeal would lie to the Supreme Court and whether this Court has jurisdiction under Article 212 of the Constitution, and secondly, validity of the laws including Martial Law Regulations, Martial Law Orders and other laws etc., mentioned therein made during the aforesaid period cannot be questioned. There is ample judicial authority in support of the view taken by us. However, if any authority is needed reference may be had to a decision of Full Bench of 4 Judges of the Supreme Court consisting of Hamoodur Rahman, C. J., Muhammad Yaqub Ali, Waheeduddin Ahmad and Salahuddin Ahmed, JJ., in the case of The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v.
Saeed Ahmed Khan and others (1). Reference may also be made to a decision of Full Bench consisting of Muhammad Haleem, Actg. C. J., Shafiur Rahman, Zaffar Hussain Mirza and M. S. H.
Quraishi, JJ., in the case of Fauji Foundation and another v. Shamimur Rehman (2). In this case Muhammad Haleem, Actg. C. J., at page 589 observed as follows :- "By giving the constitutional protection, the intention was to keep intact the validity of those Martial Law Regulations and Martial Law Orders which were saved and now became the Acts of appropriate Legislatures. There is, therefore, consistent view that those Martial Law Regulations and Martial Law Orders which were saved acquired the status of law and their validity was protected by Article 281(1) of the Interim Constitution, and on its repeal by Article 269 of the 1973 Constitution. It was for this reason that despite an argument raised against the validity of the Martial Law Regulations and Martial Law Orders, this Court in Saeed Ahmad's case refrained from examining the vires of these legal measures because of the bar (ouster clause) in Article 281(1) which was a constrain on judicial power itself under Article 201. As for Martial Law Regulations and Martial Law Orders repealed under clause (3) of Article 280, the effect of repeal was covered by Article 295."
6-A. In the above-cited case reference was placed on several decisions particularly, on a decision of Full Bench of the Supreme Court consisting of Salahuddia Ahmed, Muhammad Gul, Muhammad Afzal Cheema and Muhammad Haleem, JJ. In Sh. Karamat Ali v. The State (3), in which Martial Law Regulation XIV which was saved was questioned on the ground of its vires. But the contention was not accepted and it was held that despite the fact that it was an existing law within the meaning of Article 280 (8) of the Interim Constitution, its validity could not be challenged as blanket protection was given to it under Article 281 (1) of the Constitution. Taking up the discussion further the effect of the proviso to clause (3) of Article 280 of the Interim Constitution was also taken note of qua the legal status of those Martial Law Regulations which were saved.
(1) L D 1974 S 151 (2) PLD 1983 SC 457
(3) PLD 1976 SC 476
7. In M. Yamin Qureshi v. Islamic Republic of Pakistan (1), dealing with Article 280 of the Interim Constitution Anwarul Hach C. J. Observed as follows :- "However, Article 280 contains a specific provision, namely, clause (3) for defining the status of Martial Law Regulations and Martial Law Orders. This clause provides that 'all Martial Law Regulations and Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day, and on that date each Martial Law Regulation and the Martial Law Order so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptation, have effect as such'. The provisions to this clause enjoins that no bill to amend or to repeal, any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President. This clause being a special provision regarding the status of subsisting Martial Law Regulations, and also containing an exceptional procedure for their amendment or repeal, will exclude the application of the general provisions contained in clauses (1) and (8) of Article 280 in so far as the future status and operation of Martial Law Regulations and Martial Law Orders are concerned. As a result, although ordinarily Martial Law Orders and Regulations, saved from repeal, would have continued in force as existing laws, yet by virtue of this special provision they have to be deemed to be Provincial or Federal Acts, notwithstanding the fact that they have not been passed or made by any Legislature created or functioning under the Interim Constitution."
8. Mr. U. Niamat Moulvi referred to the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (2), but reference to this case has become redundant in view of the fact that Article 270-A,I clause (1) of the Constitution itself gives validity to all Martial Law Regulations and Orders, notwithstanding any judgment of any Court. The judgment in Begum Nusrat Bhutto being prior in time lost its efficacy in this regard.
9. As regards the ground that mode of Katcha Peshi is unwarranted and uncalled for and has no legal or constitutional sanction, it may be stated that the object of hearing the case for the purpose of Katcha Peshi is to find out whether the appellant/petitioner has a prima facie case in respect of impugned action or order. Judgment or decree. It is a long established practice. In cases where the appellant/or petitioner does not make out a prima facie case or the order, the judgment, the decree or the action is according to law it would be sheer waste of time to admit such a matter and to issue notice to the opposite-party/respondent to appear unnecessarily and/or engage a counsel and incur unnecessary expenditure.
10. These are the reasons for the order rejecting the application for amendment earlier today by a short order.
(1) PLD 1980 SC 22 (2) PLD 1977 SC 657