1. ' A. R. SHEIKH, J.-This judgment will dispose of five writ petitions (being Writ Petitions Nos. 403, 404, 223, 625 and 335 of 1972), in which common questions of law arise. The facts in each case are somewhat different and may be stated separately in a brief manner.
2. Writ Petition No, 403 of 1972. Is by Zia-ur-Rahman, who is the Advertisement Manager of the monthly, 'Urdu Digest' ; challenging the arrest and detention of Altaf Hassan Qureshi, the Editor of the monthly `Urdu Digest' and his brother Dr. Ljaz Hassan Qureshi, the Printer and Publisher of the said magazine, alongwith Mujib-ur-Rahman Shami, the Editor of weekly `Zindagi' of which the Printer and Publisher is again Dr. Ijaz Hassan Qureshi. Altaf Hassan Qureshi and Dr. Ljaz Hassan Qureshi were arrested on the 5th of April, 1972, while Mujib-ur-Rahman Shami was arrested on the 6th of April, 1972, under Martial Law Regulations Nos. 16(a) and 89. They were all produced before a Major at the Pipals on the 6th of April, 1972, when they were remanded to police custody till the 10th of April, 1972. On the adjourned date, they were produced again at the Pipals and they were delivered charge-sheets under Martial Law Regulations Nos 16(a) and 89. The case against Altaf Hassan Qureshi and Dr. Ijaz Hassan Qureshi (hereinafter called the Urdu Digest case) was taken up on the 11th of April, 1972. The case against Mujib. Ur-Rahman Shami and Dr. Ijaz Hassan Qureshi (hereinafter called the Zindagi case) was ordered to be put up on the 15th of April, 1972. Altaf Hussan Qureshi and Dr. Ijaz Hassan Qureshi were produced before the Summary Military Court No, 8 on the 11th of April, 1979. The case was heard and they were ordered to be produced on the 14th of April, 1972. However, Mujib-ur-Rahman Shami and Dr. Ljaz Hassan Qureshi were also ordered to be produced before the Summary Military Court on the 13th of April, 1972, when the case of Muzaffar Qadir and Hussain Naqi, the detenus in the connected case (Writ Petition No, 404 of 1972) came up for hearing. All the three cases were decided that day with the result that the accused were convicted and sentenced to various terms of imprisonment and fine. Earlier on the 10th of April, 1972, Mujib-ur-Rahman Shami had filed a written statement objecting to the jurisdiction of the Summary Military Court. Similarly, Dr. Ijaz Hassan Qureshi also put in a written statement objecting to the jurisdiction, to which statement Altaf Hassan Qureshi also subscribed his signature saying that he associated himself with all that had been said in the preliminary objection. It has been stated that the case against the detenus has been the result of annoyance caused to the Press Consultative Committee, which body has no statutory sanction behind it, although it has the patronage of the Central Minister for Information, who presides over its meetings. This Committee sent telegraphic notices (Annexures All and A/2 to the writ petition) to the three detenus on the 29th of March, 1972, asking them to appear before the said Committee on the 3rd of April, 1972, but Altaf Hassan Qureshi and Mujib-ur-Rahman Shami declined to do so in a joint reply sent telegraphically stating that they did not recognize the authority of the Press Consultative Committee or the validity of the so-called Code of ethics. Copies of The telegrams were released through the Press and the Press Consultative Committee gave a rejoinder through the Press. Altaf Hassan Qureshi and Mujib-ut-Rahman Shami thereafter gave a sur-rejoinder re-affirming their earlier position and released a statement (Annexure `B' to the writ petition) to that effect to the Press. Under a newly-promulgated Martial Law Order known as the Objectionable Publication Order issued on the 5th of April, 1972, the publication of the two magazines was banned and, as already stated above, all the three detenus were put under arrest. The writ petition was admitted to a full hearing on the 10th of April, 1972 expressing hope and desire that the Summary Military Court will not pass final orders till the 12th of April, 1972, to which date the case had been adjourned for appearance of the learned Attorney-General. On the 12th of April, 1972, the case was adjourned to the 20th of April, 1972, at the request made by the learned Standing Counsel appearing for the Attorney-General, on whose behalf it was also stated that he shared the hope that final orders will not be passed in these cases. On the 17th of April, 1972, a petition (Civil Miscellaneous No, 1 of 1972) was moved for suspension of the operation of the order of conviction and sentence passed by the Summary Military Court. Interim relief was granted by majority order of the Bench by suspending the sentence of the detenus in so far as rigorous nature of imprisonment and realization of fine was concerned. Two of us (myself and Muhammad Afzal Cheema, J.) dissented with that view, on the ground that question of jurisdiction of this Court in the matter had yet to be determined. The case was adjourned to the 20th of April, 1972. The interim order of the majority was suspended by the Supreme Court in Petition for Special Leave to Appeal No, 81 of 1972, on the 19th of April, 1972, when it was observed :- ". . . . . As it is contended that under the present Constitution which has been adopted by the National Assembly and will be commenced from 21-4-1972 all sentences passed by the Military Courts have been validated."
2. ' Writ Pelition No, 404 of 1972 pertains to the case of Editors, Printers and Publishers of the 'Punjab Punch' (hereinafter called the Punjab Punch case), Muzaffar Qadir, a C. S. P. Officer, who had been dismissed from service amongst 303 Officers sacked during Yahya Khan's regime, is stated to be the Manager of Packall Printing Press, Lahore. Hussain Naqi (a journalist by profession) is the Publisher and Editor of the Punjab Punch, which weekly is being printed at the Packall Printing Press.
3. The owner of the press is stated to be one Sardar Muhammad Sarfraz. Hussain Naqi is stated to have applied for a declaration of Weekly Punjab Punch and the same was granted sometime in February, 1971. The declaration of the Punjab Punch was cancelled on the 1st of January, 1972, by the District Magistrate, Lahore, but this cancellation was set aside by the said authority on representation being made to him. Subsequently, the declaration was again cancelled and Writ Petition No, 168 of 1972 was filed against this order. This Court allowed the writ petition on the 2nd of March, 1972.
4. ' It is averred that Muzaffar Qadir was being harassed for having published critical articles in the 'Punjab Punch' and apprehending trouble at the hands of the Executive as a reprisal against some of the said articles, he approached this Court on the 18th of March, 1972, in Writ Petition No, 286 of 1972, with a prayer for anticipatory bail. On the 21st of March, 1972, when the case came up for hearing, the learned Advocate-General stated at the Bar that the Civil Government did not contemplate any action against him. The petition was subsequently amended into one for quo warranto, on oral prayer. Learned counsel, however, stated at the Bar that in view of the lifting of Martial Law, the writ petition had become infructuous and the same has accordingly been dismissed as not pressed. The present writ petition was filed on the 7th of April, 1972. An order on the 4th of April, 1972 (Annexure 'A' to the writ petition) was issued by the Martial Law Administrator Zone 'C', under Martial Law Regulations Nos. 89 and 16(a) saying that a case was registered against the various persons mentioned therein, which included Muzaffar Qadir and Hussain Naqi alongwith other Editors, Printers and Publishers (on whose behalf Writ Petition No, 403 of 1972 has been filed), they be arrested and the case be heard by the Summary Military Court. The background of this arrest and conviction under Martial Law is given to be that Hussain Naqi is a friend of the present President; he. However, criticised certain statements issued by the President when he addressed the journalists before the 30th of December, 1971 ; attempts were made to arrest him but Mr. Bhutto intervened. Thereafter, pressure was brought to bear on Hussain Naqi to mend his policy through the good offices of Mr. Hanif Ramey, a leader member of the Pakistan People's Party and at present a Provincial Minister, and the Superintendent of Police, Lahore, who used to be present in such meetings. Hussain Naqi was arrested on the 5th of April, 1972, while Muzaffar Qadir was arrested on the 6th of April, 1972, and this writ petition was filed under Article 98 in the nature of a habeas corpus on the 7th of April, 1972. The accused was charge-sheeted on the 10th of April, 1972, and the case adjourned to the 15th of April, 1972. The case before this Court was fixed for the 10th of April.
5. 1972, and was adjourned to the 12th of April, 1972, and then was adjourned to the 20th of April, 1972, as already stated in the earlier case The accused were convicted by the Special Military Court on the 13th of April, 1972. The petitioner then filed Criminal Miscellaneous No 52 of 1972 on the 14th of April, 1972, for contempt against the orders of this Court in respect of violation of orders of this Court passed on the 12th of April, 1972, in which hope and desire was expressed that the operative part of the order passed on the 10th of April, 1972, will be respected, which hope had also been shared by the Attorney-General. Another Criminal Miscellaneous (No, 190/H of 1972) under section 491, Cr. P. C.
6. Was also filed the same day. On the 17th of April, 1972, interim relief was given by the majority order, the operation of which majority order, as already stated in the first case, was suspended by the Supreme Court on the 19th of April, 1972.
7. ' Writ Petitions Nos. 223 and 625 of 1972.-One Abdul Khaliq, a mill owner, was injured on the 10th of February, 1972 at Lyallpur. The same day an F. I. R. Under sections 307/452 and 148 of the Pakistan Penal Code was registered against eight accused other than Muhammad Mukhtar Rana accused, at Police Station Civil Lines, Lyallpur, ny Abdur Rahim, a co-partner of Abdul Khaliq. By the evening Abdul Khaliq died and the charge in the first information report was altered to one under section 302, P. P. C. On the 14th of February, 1972, a news item appeared in the Press (the Pakistan Times), that warrants of arrest of Muhammad Mukhtar Rana have been issued in connection with the murder case, and two days thereafter Criminal Miscellaneous No, 330/B of 1972 was filed in this Court for anticipatory bail on behalf of Muhammad Mukhtar Rana, which bail petition was allowed by a Bench of this Court on the 17th of February, 1972. In between the 17th and 19th of February, 1972, the investigating officer added Martial Law Regulation No, 16(a) to the offences mentioned in the first information report, and on the 19th of February, 1972, the Martial Law Administrator Zone 'C' passed orders saying that the case shall oe heard by the Special Military Court convened for the purpose. On the 24th of February, 1972, the learned Single Judge referred the case to the learned Chief Justice for constituting a larger Bench to hear the case. The learned Chief Justice accordingly nominated a Full Bench of three Judges, namely, Mr. Justice Muhammad Afzal Cheema, Mr. Justice Ataullah Sajjad and Mr. Justice Muhammad Afzal Zullah. On the 6th of March, 1972, the Advocate- General requested for cancellation of bail granted to the accused earlier but the Court refused to recall the bail order and adjourned the case to the 13th of March, 1972. In the meanwhile Writ Petition No, 223 of 1972 was filed challenging proceedings against the petitioner before the Special Military Court for the said murder case. These proceedings were stayed by the Full Bench. However, on the 10th March, 1972, Special Leave to Appeal was granted against the orders dated the 6th of March, 1972, granting bail to the accused as also the stay order dated the 9th of March, 1972. The Supreme Court suspended the operation of the stay order on a statement by the Advocate- General that no final order will be passed meanwhile. On the 13th of March, 1972, the writ petition was adjourned to the 24th of March, 1972, by this Bench constituted to hear the case to await decision in Criminal Appeal No, 19 of 1972 (Miss Asma Jilani v. The Government of the Punjab and another). On his way back from Court, Muhammad Mukhtar Rana was arrested for having made a speech on the 14th of March, 1972, in a meeting at Lyallpur and the Special Military Court convicted him and sentenced him to five years' rigorous imprisonment on the 10th of April, 1972. To complete the picture it will not be out of place to mention that Writ Petition No, 625 of 1972 was filed against this conviction, which has since been admitted to a regular hearing and is being disposed of by this judgment. Next in the series came Notification of the Chief Election Commissioner declaring Muhammad Mukhtar Rana's seat in the National Assembly vacant under Article 9(2)(c) of the Legal Framework Order, 1970 (President's Order No, 2 of 1970), read with Article 295(b)(d) and Article 76(a)(c) of the Interim Constitution of the Islamic Republic of Pakistan. Writ Petition No, 627 of 1972 assails this notification dated the 5th of May, 1972, of the Election Commissioner. As counsel wants to amend this writ petition, it still awaits completion and adjudication.
8. ' Writ Petition No, 335 of 1972.-The petitioner Muhammad Riaz Shahid claims to be the Vice- President of the National Progressive Workers Federation and Circle Saddar of People's Party, New Civil Lines, Lyallpur. It is averred that he has been falsely implicated in the murder case of Abdul Khaliq alongwith Muhammad Mukhtar Rana (petitioner in Writ Petitions Nos. 223 and 625 of 19 2) and that offences under Martial Law Regulations Nos. 89 and 16(a) have been maliciously included in order to deprive him of his remedy before the Courts of law. The grounds of attack of his trial before the Special Military Court are almost identical with that in Muhammad Mukhtar Rana's writ petitions.
3. All these writ petitions have now come up for hearing on merits and full arguments have been presented before the Court on the basis of the Supreme Court judgment in Asma Jilani's case reported as PLD 1972 SC 139 pronounced on the 20th of April, 1972, which decision had been ordered to be awaited before proceeding with these cases.
4. Mr. M. Anwar, learned counsel in the Urdu Digest and Zindagi cases, he argued with vehemence that the decision in Asma Jilani's case will operate so as to destroy completely Martial Law Regulations Nos. 16(a) and 89 and the reasons therefor have been enumerated as under
(i) Both these Regulations were introduced to entrench the usurper in power ;
(ii) they came from an incompetent source and they offended against the Constitution of 1962
(iii) they were not introduced for the ordinary orderly Government of the country ; and
(iv) condonation and not validation of specific acts can be only by the superior Courts, having regard to the doctrine of necessity keeping in view the principles enunciated in Asma Jilani's case.
9. ' Elucidating his argument learned counsel referred to the reasoning appearing at page 206 of the report with regard to the principles of condonation (reproduced below) applied by the learned Chief Justice, of such laws on the basis of necessity because illegal and illegitimate acts could not be legitimised :- "Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by re-opening them, (2) all acts and legislative measures which are in accordance with, or could have been made under the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) -all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1949.. . ."
10. ' It was further contended that keeping in view these findings the learned Chief Justice has struck down Martial Law Regulation No, 78 of 1971 and President's Order No, 3 of 1969 and the same should be the fate of Martial Law Regulations Nos. 16(a) and 89.
5. Learned counsel next referred to the observations in the judgment delivered by Mr. Justice Salahuddin Ahmed at pages 266 and 267 of the report, which is to the following effect " No doubt the 1962 Constitution contains certain provisions ousting the jurisdiction of the Supreme Court, the ouster, however, does not take away the jurisdiction of the Court in regard to this particular point in issue. Reference has been made to the 1962 Constitution, because that is the only legal instrument under which the institution of the Supreme Court was established. A pertinent question, however, arises as to whether after the abrogation of the 1962 Constitution by General Agha Muhammad Yahya Khan by his proclamation of the 25th March, 1969, this Court can still derive inspiration and authority from the said Constitution. The short answer to this is that as soon as General Agha Mahammad Yahya Khan made his exit from the scene, the Constitution, which had been dormant in the meantime, revived.
11. ". The 1962 Constitution has come back with full force and is operative until it is validly replaced by the elected representatives of the people."
12. ' Learned counsel also referred to the judgment delivered by Mr. Justice Sajjad Ahtnad Jan at page 262 of the report, wherein his Lordship has summarised his conclusions as follows :- `'(1) The decision of this Court in Dasso's case does not lay down good law, and must be overruled.
(2) The Martial Law as proclaimed by General Agha Muhammad Yahya Khan was illegal. The assumption of power by General Agha Muhammad Yahya Khan as the President and the Chief Martial Law Administrator was wholly unconstitutional, and cannot be recognised as valid.
(3) General Agha Muhammad Yahya Khan was no doubt in effective control of governmental power for the period that he remained in the saddle, and only those of his legislative and administrative acts can be recognised by the Courts, which may be found to be absolutely necessary on the doctrine of necessity within the limitations of that doctrine to be adjudged by the Courts.
(4) President's Order No, 3 of 1969 and Martial Law Regulation No, 78 of 1971, not being valid laws, cannot be recognized as such by the Court, and have to be struck down.
13. ' On the basis of the observations partly reproduced above, Mr. M. Anwar criticised the arrogation of power by General Agha Muhammad Yahya Khan to have promulgated the Legal Framework Order of 1970, under which he had conferred power on the National Assembly to frame a constitution. It was argued that as the 1962 Constitution had revived and the Legal Framework Order had originated from an incompetent authority, only elections could have been saved on the usurper's exit on the doctrine of necessity laid down by their Lordships of the Supreme Court and the National Assembly which had been summoned and convened by the President and Chief Martial Law Administrator, Mr. Zulfiqar Ali Bhutto, on the 14th of April, 1972, for a short session under President's Order No, 11 of 1972, could not function, as the Constituent Assembly to frame a new Constitution for the country. According to him, it could only act as National Assembly under the 1962 Constitution and could bring in certain amendments necessary under Articles 208 and 209 for democratisation of the Constitution so as to alter it into a parliamentary form of Government instead of Presidential and elections to various legislations in the country are held on the basis of direct adult franchise and not otherwise, for which purpose agitation had been carried in the streets of the country against the Ayub regime in 1968, culminating in his (Field Marshal Muhammad Ayub Khan's) resignation and usurpation of power by General Agha Muhammad Yahya Khan. Under this argument, he further contended that the National Assembly was not attended by the majority party of the Eastern Wing of the country which was in occupation of the enemy and for that reason also the National Assembly could not arrogate to itself this role of an Assembly to frame a Constitution for the country and the replacement of the 1962 Constitution by the Interim Constitution being not a case of amendment is not a legal document and is subject to scrutiny by the superior Courts which is the inherent right of the statutory judiciary of the country.
14. ' Learned counsel also contended that Articles 280 and 281 read with Article 295 incorporated in the Interim Constitution offend the grund norm (the Objectives Resolution of 1949) and had to be struck down. He contended that the circumstances in which the Members of the National Assembly met were peculiar. The National Assembly is to meet after the snort session only on the 14th of August, 1972, and the budget has been left to one man instead of the chosen representatives, who in their turn have accepted the present President as the President of the country. He maintained (with reference to page 1t2 of the Supreme Court judgment) that the Military Commander had not the power to abrogate the fundamental law of the country which is the Objectives Resolution of 1949, the grund norm in our case, which grund norm has been described as an immutable and unalterable norm by the learned Chief Justice. The Objectives Resolution of 1949 is reproduced below for ready reference:- OBJECTIVES RESOLUTION (1949)
15. "In the name of Allah, the Beneficent, the Merciful; ' Whereas sovereignty over the entire universe belongs to God Almighty alone and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust; ' This Constituent Assembly, representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan ; ' Wherein the State shall exercise its powers and authority through the chosen representatives of the people; ' 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 accord with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah (Traditions of the Holy Prophet); ' Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures; ' Whereby the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; ' Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; ' Wherein the independence of the judiciary shall be fully secured; ' Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded; ' So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."
16. ' On this hypothesis learned counsel contended that the National Assembly could only legislate in the sub-constitutional field and the 1962 Constitution still was intact on the 17th of April, 1972, and the Fundamental Rights were also operative and as such the conviction and sentence of the detenus were illegal. According to him, emergency had been revoked on the 17th of February, 1969, and the Fundamental Rights revived, which sights had been suspended under Article 30 of the 1962 Constitution on the 6th of September, 1965 No emergency was declared thereafter by General Agha Muhammad Yahya Khan till the 23rd of November, 1971, and while previously he had abrogated the Constitution and the Fundamental Rights, the movement the usurer made exit, the 1962 Constitution which had remained dormant, revived for all intents and purposes. It was argued that on the 17th of April, 1972, when a fresh application was filed by him, the Fundamental Rights were in existence and the detenus were entitled to be released under Article 98 of the Constitution Act of 1962, on pronouncement from the Court. He further argued that on the 17th of April, 1972, the right accrued to the detenus by the majority opinion expressed by this Court (which opinion, of course, has been suspended by the Supreme Court) and on the 20th of April, 1972, when the Supreme Court judgment was pronounced, the right of the detenus appeared forthwith, as the majority opinion of this Court was revived and this right could not have been taken away by the National Assembly by introducing Articles 280 and 281 read with Article 295 of the Interim Constitution. He referred in this respect to The Colonial Sugar Refining Co. Ltd. v. Irving (I).
17. ' It was contended that Article 2 and Fundamental Rights Nos. And 4, which are akin to Articles 3, 7 and 11 in the Interim Constitution (reproduced below) also come to the rescue of the detenus because that is a guarantee against retrospective punishment and validation clause introduced in the Constitution by way of Articles 280 and 281 has to be struck down as it sinned against the Interim Constitution itself:- 1962 Constitution Interim Constitution.
18. Article 2.-(1) To enjoy the pro- Article 3.-(1) To enjoy the pro- tection of the law, and to be tection of law, and to be treated
(1) 1905 A C 369 treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular-
(a) No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
19. ' Fundamental Right I. Security of person.-No person shall be deprived of life or liberty save in accordance with law.
20. Fundamental Right 4.
21. Protection against retrospective punishment.-No law shall authorize the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission ; Or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed." in accordance with law and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from, or be hindered in doing anything not prohibited by law; and
(c) no person shall be compelled to do anything the law does not require him to do."
22. Article 8. Security of person.-No person shall be deprived of life or liberty save in accordance with law. Article 11.
23. Protection against retrospective punishment.-No law shall authorize the punishment of a person-
(a) for an act or omission which was not punishable by law at the time of the act or omission; or (b)for an offence by a penalty greater than. Or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."
24. ' Articles 280, 281 and 295 of the Interim Constitution may also be reproduced with advantage at this stage:- "Article 280.-(1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
(2) The Proclamation made on the twenty-fifth day of March, 1969, is ?Evoked with effect as from the commencing day, and the Orders specified in the Sixth Schedule and any Orders amending those Orders are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders.
(3) All Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day, and on that day each Martial Law Regulation and the Martial Law Orders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such: ' Provided 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.
(4) For the purpose of bringing the provisions of any existing law into accord with the provisions of this Constitution (other than Part II of this Constitution), the President may make, by Order, such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any Order so made shall have effect (or be deemed to have had effect) from such date, not being a date earlier than the commencing day, as may be specified in the Order.
(5) The President may authorise the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (4) in respect of laws relating to matters with respect to which the Provincial Legislature has power to make laws.
(6) The powers exercisable under clauses (4) and (5) shall be subject to the provisions of any Act of the appropriate Legislature.
(7) Any Court, tribunal or authority required or empowered to enforce an existing law- shall, notwithstanding that no actual adaptations have been made in such law by an Order made under clause (4) or clause (5), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Constitution.
(8) In this Article, 'existing laws' means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the commencing day."
25. "Article 281.-(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March, 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
(2) 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, on or after the twenty- fifth day of March, 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.
(3) No suit 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 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."
26. Article 295.-Where a law (including a President's Order, a Martial Law Regulation or a Martial Law Order) is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not, except as otherwise provided in this Constitution,-
(a) revive anything not in force or existing at the time at which the repeal takes effect ;
(b) affect the previous operation of the law or anything duly done or suffered under the law ; (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment ; or
(f) affect the continuance of anybody or authority constituted by or under such law ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, and such body or authority continued as if the law had not been repealed."
27. ' In the alternative, learned counsel argued that if the National Assembly were to be treated as a Constituent Assembly, even then the grund norm, the Objectives Resolution of 1949, could be the criterion, and as sovereign judicial power vests in the superior Courts of the country, the provisions of the Constitution shall be subject to scrutiny by the Court on the basis of grund norm. It was maintained that if the Constitution is contrary to the wishes of the people, namely, that Martial Law must go, the effect of aftermath of Martial Law preserved in the interim Constitution by introducing the validating Article 281 cannot be accepted as valid. He argued that Martial Law of the kind of invader could not be enforced in the country: that was the popular demand of the electorate that was in accordance with the grund norm and that the grund norm could not have been violated.
28. ' It was next contended that under the President's Order No, 11 of 1972 (National Assembly (Short Session) Order, 1972), Article 9 deals with three matters, namely, (0 vote of confidence in the President, continuance of Martial Law, and (iii) passing of Interim Constitution along-with appointment of a committee to prepare a Constitution, and, therefore, this very purpose of convening the Assembly and holding a short meeting thereof was in fact an action violative of the grund norm because continuance of the Martial Law strikes at the very root of the grund norm.
29. Article 10 of the President's Order No, 11 of 1972, which deals with privileges, according to counsel, is no bar because this order is mad before the Supreme Court decision was pronounced and, therefore, stand struck down. I he proceedings before the Short Session Assembly were also canvassed and it was argued that it was not in accordance with the democratic principles because no amendment was permitted by a member other than the member who moved the resolution and the National Assembly was paralysed.
30. ' It was further contended that Martial Law Regulations Nos. 16 and bad to be struck down as having been nullity and void ab initio as he by the Supreme Court and they could not have been continued on the principles of necessity either. The provisions of Article 281 were assailed as violative of Fundamental Right No, 4 of 1962 (Article 11 of the Interim Constitution) being in the form of a bill of attainder. It was argued that the National Assembly could not legislate retrospectively and the Article which is aimed at giving fresh lease of life to illegitimate lass with effect from the 25th of April, 1969, is a nullity, because, according to learned counsel, from the 25th of March 1969 to the of April, 1972 the organic law of the land was in force and these incompetent law. Stood struck down It was also argued that the Legal Framework Order, if assumed to give power to the elected representatives, to act as a National Assembly, it did not permit to legislate when the 1962 Constitution was in the field.
31. ' It was argued that Article 281 was in the nature of an Indemnity Act and it bad to be passed as an ordinary legislative measure and not as a special constitutional law, and, therefore, on that basis also this Court had jurisdiction to consider the constitutionality thereof.
32. ' Learned counsel also argued the case on the ground of malice and relied on the following factors in this regard :-
(1) That the detenus had refused to appear before the Press Consultative Committee, which Committee had no legal authority behind it and thus refusal of theirs annoyed the Press Consultative Committee, especially the Central Minister for Information, who presided over the meeting of this Committee.
(ii) The Committee wanted to stop publications of the periodicals `Urdu Digest' and 'Zindagr, under Martial Law Order No, 259, without giving the detenus a show-cause notice. They did stop the publications of these periodicals.
(iii) The mere accusation which is given in the charge-sheet, appearing on the record of the case, does not disclose a case under Martial Law Order No, 259, even if it is considered a valid piece of law.
(iv) Dates of hearing were accelerated without a prior notice. The National Assembly was to meet on the 4th of April, 1972. The case was sub judice before this Court and wish and desire had been expressed but still the authorities proceeded on the 13th of April, 1972 with the trial and convicted the accused.
(v) The time taken in the sham trial shows that it was physically impossible to go through the Article.
(vi) The accused were not permitted to cross-examine the witnesses. They were not asked whether they wanted to produce defence.
33. ' A half-hearted suggestion was also made during the course of arguments that the Presiding Officer had not taken the requisite oath before commence- Bent of the trial. On this basis it was contended that the action was taken with malice and the question of malice being justiciable, the conviction and sentences, if any, passed in the case, be quashed despite the presence of Article 281 in the Interim Constitution.
34. ' Learned counsel lastly referred to The Broom's Legal Maxims' at page 73, to the effect that an act of the Court shall prejudice no man and contended that had the case not been adjourned from the 12th of April, ,972 at the request of the Attorney-General, the matter could have been decided and perhaps before approval and passing of the Interim Constitution, the detenus been released and on that hypothesis status quo ante should now be enforced and the detenus ordered to be released forthwith.
35. ' Mr. S. M. Zafar, Advocate, appearing on behalf of Muhammad Mukhtar Rana and Riaz Shahid, has adopted a different line of attack, as distinguished from the argument addressed at the Bar by Mr. M. Anwar, Advocate, in the previous case. Mr. S. M. Zafar does not support Mr. M. Anwar in his contention that the 1962 Constitution has revived and that Articles 280 and 281 are ultra vires for that reason. He argued that the Legal Framework Order pronounced by Agha Muhammad Yahya Khan was the basic document in the constitutional history of the country in order to maintain continuity of evolution of democratic institution in the country, under which elections in the country had been held, and just as the Supreme Court had applied the doctrine of necessity to refuse to strike down the elections held under the Legal Framework Order, this Court should save and preserve the Legal Framework Order applying the doctrine of necessity and the principles enunciated by the learned Chief Justice of Pakistan at page 206 of his judgment and the elections held and the function of the National Assembly should be considered under the aegis of the Legal Framework Order which document should be considered as a charter under which the National Assembly has to function. He contended that the sovereignty of the Constituent Assembly is a wrong notion as has been held in Federation of Pakistan and others v. Moulvi Tamizuddin Khan (1).
36. And he particularly referred to the following observations appearing at page 298 of the report:- "In my opinion, it is a mistake to suppose that sovereignty in its larger sense was conferred upon the Constituent Assembly, or that it could function outside the limits of the Indian Independence Act. The only power given to that Assembly was the power to make laws, constitutional or federal.
37. In the former case, it exercised the power to make provision as to the constitution of the Dominion which had been included in the generality of the powers conferred by section 6 on the Legislature of the Dominion, and in the latter it acted as the Federal Legislature with all the limitations to which that Legislature was subject. Apart from these powers, it had no other power and it lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body in the State.
38. ' He next referred us to Article 2 of the National Assembly (Short Session) Order, 1972 (President's Order No, 11 of 1972) and contended that the Legal Framework Order is a charter in so far as it is not inconsistent with President's Order No 11 of 1972 and this Legal Framework Order has only been repealed by the Interim Constitution when it came into force on and from the 21st of April, 1972. He contended that the National
(1) PLD 1955 FC 240 Assembly could not have any plenary power so as to be unfettered frame a Constitution for the country of any form and the type they chos to. Mr. Zafar referred to para. 20(3) (b)(c) of the Legal Framework, Order and attempted to argue that fundamental rights of every citizen were to be laid down and guaranteed and the independence of judiciary: was also to be guaranteed in the new Constitution that had to be frame( as per provisions of the Legal Framework Order and that is why he say that it is the charter of the National Assembly. The preamble of this Legal Framework Order, according to him, is also in accordance with te, principle laid down in the judgment of the Supreme Court in Asma Jilani's case. He maintained that as the National Assembly had to me to frame Constitution keeping in view the basic principles laid down it Legal Framework Order, fundamental rights were to be enshrined in this Constitution and although it has been so done in the first part of the Constitution, whatever has been given by one hand has been taker away by the other in incorporating Articles 280 and 281 in the Constitution itself. In elaboration of his argument that the Legal Frameworl Order is a legal document and the National Assembly met under that document, he maintained that on the 20th of December, 1971 Mr. Zulfikar Ali Bhutto took over as President validly and legally. On that 11th of March, 1972 he issued President's Order No, 8 of 1972 amending the Legal Framework Order, which in itself is indicative of accepting the Legal Framework Order as a valid document, and on the 27th of March, 1972 promulgated President's Order No, 11 of 1972, which again recognized the Legal Framework Order as per para. 2 of the said Order. When the National, Assembly met, being summoned by the President, it followed the Legal Framework Order.
39. According to him, a mistake was committed by introducing Article 281, as Courts were precluded from looking into the case, which was brought by an amendment This is a violation of the Legal Framework Order. The National Assembly, according to him, should not have barred application of the fundamental rights and also should not have limited jurisdiction of the Court. He argued that bat of judicial power is invalid and perhaps bar of jurisdiction is not invalid. He next referred to Constitutional laws of the Commonwealth by Sit Ivor Jennings, Volume I, Third Edition, pages 25-26 and then pages 5C and 84 of the same publication, which citation was pointed out to counsel to be irrelevant.
40. ' In the alternative Mr. Zafar argued that assuming that Articles 28C and 281 are valid, even then on construction of Article 281, challenge to the conviction of Muhammad Mukhtar Rana is formidable.
41. He argued that Article 281 (I) has validated all Proclamations, President's Orders, Martial Law Regulations and Martial Law Orders, etc. In sub-Article (2) certain acts etc. Have been attempted to be made immune while sub-Article (3) deals with indemnity to various functionaries; who had acted of passed orders under the Martial Law Regulations or Martial Law Orders. He scanned the position vis-a-vis the Presidential Orders, Martial Law Regulations and Martial Law Orders. He argued that the President's Orders, Martial Law Regulations and Martial Law Orders (appearing in the First Schedule) have been saved from attack under Fundamental Rights by virtue of Article 7(3)
42. (b). Next come the Presidential Orders which have been repealed. These have been listed in the Sixth Schedule by virtue of Article 280(2) and the third category is of Martial Law Regulations and Martial Law Orders (placed in the Seventh Schedule), which have been continued as laws by virtue of Article 280(3). According to learned counsel on the construction of sub-Article (1) of Article 281, the validity of laws, whether Proclamations, Martial Law Regulations or Martial Law Orders, has been made absolute notwithstanding any judgment of any Court and the absence of the words "notwithstanding any judgment of any Court" in sub-Article (2) of Article 281 is signincant, which means that actions are not immune and this Court has jurisdiction to examine a given case.
43. According to him reading the three sub-Articles of Article 281 together, all Martial Law Regulations and Martial Law Orders would be considered to have been validly made and a particular Martial Law Regulation or Martial Law Order is no longer the law of the land, if it has not been saved in the Seventh Schedule because they stand repealed as from the commencing day, namely, the 21st of April, 1972. He maintained that particular actions and transactions could be challenged before the Court on unlimited grounds, that is, grounds which are legal and which make the action taken illegal, such as any conflict of various Martial Law Regulations or procedure not followed or case not covered by the particular Martial Law Regulation or Martial Law Order or the accusation not being an offence under the Martial Law Regulation and Martial Law Order, or the action taken being mala fide. In other words, he argued that the principle of coram non judice and malice of conflict of Martial Law Regulation itself could be canvassed before this Court and there was no immunity in this respect under sub-Article (2) of Article 281. For this purpose, he referred to Martial Law Regulation No, 88 of 1958, as also Martial Law Regulation No, 93 of 1958 Martial Law. He next referred us to President's Order No, 26 of 1962, and on comparing language of these two Regulations and President's Order with Article 281(2) argued that there was no prohibition that could be spelt out of Article 281(2) in the way of the Court to examine a particular transaction or an action and give adequate relief in the circumstances of the case. To elucidate his point, he referred to Muhammad Ayub Khuhro v. Pakistan (1), Muhammad Afzal v. The Commissioner, Lahore Division and another (2), Azizur Rahman Chowdhury v. M. Nasiruddin and others (3), Mst. Anwar Khatun v. The Chief Land Commissioner and oth rs (4) and Zafar-ul- Ahsan v. The Republic of Pakistan (5). He next argued that validity of an act or a transaction is qua the rest of the world but not the High Court or the Supreme Court, which are Courts of record. He further explained that the writ jurisdiction conferred on the High Court under Article 201 of the Interim Constitution did not get ousted by Article 281(2).
44. He interpreted the words "subject to this Constitution" appearing in Article 201 as referring to Articles of ouster of jurisdiction specifically so expressed in the Constitution and not any implied ouster and as such sub Article (2) of Article 281, according to him does not come within the mischief of the rider added to Article 201, namely, "subject to this Constitution".
45. ' Learned counsel maintained that creation of Military Courts by the Proclamation of 25th March, 1969, which is the source (of course invalid) of this creation, having disappeared, the repeal of Martial Law Regulation No, 2, which Regulation merely defines jurisdiction of Military Courts,
(1) PLD 1960 SC 237 (2) PLD 1963 SC 401
(3) PLD 1965 SC 236 (4) PLD 1971 Lab. 698
(5) PLD 1960 SC 11i would not be saved by the savings or repeal contemplated by Article 295 of the Interim Constitution. He argued that as per Malik Mir Hasan and another v. The State (1) now when the Civil Government is in seat, no Military Court could try an offence alleged to have been committed during the Martial Law days. Coming to President's Order No, 14 of 1972, he argues that para. 4 is in conflict with the Supreme Court's judgment and as it is in violation of the Constitution it has to be struck down. As regards the Proclamation of the 21st of December, 1971 by General Agha Muhammad Yahya Khan proclaiming that Mr. Zulfikar Ali Bhutto had been appointed as the Chief Martial Law Administrator and the President of the country, he maintained that the argument on behalf of Muhammad Mukhtar Rana was not in any manner impaired Next he referred to the question of pending proceedings before the Military Court with reference to the order of the Supreme Court in the Petition for Special Leave to Appeal suspending the operation of the order of this Court staying proceedings before the Special Military Court. It was argued with reference to the Manual of Pakistan Military Law that a finding of the Military Court will not be valid until confirmed and promulgated and because in the instant case an undertaking had been given that no final order will be passed by the Military Court in the meanwhile, the recording of finding of conviction even could not have been done and the case before the Special Military Court will be deemed to have been pending and as already argued by him that no Military Court could function after the lifting of Martial Law, even the President's Order No, 14 of 1972 could not be considered in any manner to have saved the situation because all that it says is that for purposes of confirmation the matter would go to the President and there being no legal finding on the record what could be confirmed by the President and even if it could be confirmed, until and unless that finding is promulgated by the Military Court after taking into consideration the character etc. Of the accused, as per provisions of rules 145 and 148 read with rules 53 and 58 of the Pakistan Army Act Rules, 1954, applicable to Special Military Courts by virtue of Martial Law Regulation No, 2, it could not be said that the case against the accused had in any manner been concluded and finally disposed of by the Military Court. Under this aspect of the case there has been no conviction learned counsel has placed reliance on the above Rules and argues that as on the 20th of April, 1972 there had been no conviction, there could not be any continuation of the case before the Special Military Court and if at all, the case has to be referred to an ordinary criminal Court.
46. ' As regards Writ Petition No, 335 of 1972 by Riaz Shahid, a co-accused of Muhammad Mukhtar Rana in the murder case, who had also not been included amongst the eight persons named in the first information report in the first instance, Mr. Zafar stated at the Bar that his case was identical with Muhammad Mukhtar Rana and the arguments addressed by him will suffice. The only distinctive feature is that although Muhammad Mukhtar Rana has been convicted and sentenced for another offence of having made a speech on the 14th of March, 1972, there is no such accusation against Riaz Shahid and according to him, his case was also pending before the Special Military Court at the time of the lifting of Martial Law.
47. ' Learned counsel in the Punjab Punch case has contended that habeas corpus is essentially a writ of return and on the return submitted by the respondents. The detenus, if found to have been confined without jurisdiction, an order of release should follow. On this premises he argued that
(1) PLD 1969 Lab, 786 when he had filed the writ petition on the 7th of April, 1972, it was the legal right of the detenus that after examination of their case, this Court, if satisfied that the detention was illegal and without lawful authority, the writ of release would have issued as a matter of course and the detenus were entitled to liberty from the date the writ petition was tiled or the return is made by the respondents.
48. In this respect he attempted to argue that in such circumstances the Court would be entitled to ante-date the judgment in the case and he relied on para. 1657 entitled "Judgments and date of judgments and Orders" in Halsbury's Laws of England, Volume 22, Third Edition, as also rule 9 of Chapter IV-F, High Court Rules and Orders, Volume V, pertaining to writs. However, when it was pointed out to him that para. 1657 has no relevance to the submission made by him, he did not press the argument further. With reference to rule 9 of Chapter IV-F, High Court Rules and Orders, Volume V, learned counsel argued that if examination of the detenus' case under Article 98 of the 1962 Constitution (as contained under Article 201 of the Interim Constitution) resulted in acceptance of the writ petition, the order will be considered to be effective from the date the writ is returned by the respondents and no more. Learned counsel agreed that by ante-dating the judgment he meant that the detention of the detenus from the date of return may be declared to have been illegal if his petition succeeds.
49. ' It was secondly contended that when the police had arrested the detenus, they should have been proceeded against under section 167 of the Code of Criminal Procedure instead of forwarding their cases to the Summary Military Court. When pointed out that this argument did not in any manner advance the case of the detenus, learned counsel did not press the matter further, nor are we called upon to examine this half-hearted contention.
50. ' The third contention raised by Dr. Khalid Ranjha was that as detention of the detenus from the 5th of April, 1972 to the 20th of April, 1972 is illegal and as every day of illegal detention is ti continuing wrong, this Court is empowered to examine and judicially review the detention even after the conviction of the accused on the 13th of April, 1972 and promulgation of the Interim Constitution with effect from the 21st of April, 1972. He referred to Mazhar Hussain Bhuiya v. The Province of East Pakistan and another (1). He also associated himself with the arguments advanced by Mr. M. Anwar that no man is to suffer for an act of the Court, which argument rests on the maxim actus curiae neminem gravabit appearing in Broom's Legal Maxims.
51. ' The next contention is that even the Interim Constitution will not interfere with the right that accrued to the detenus and whatever provisions in the Interim Constitution belittle that right are illegal and ultra vires the Interim Constitution itself and the Constituent Assembly. These provisions are Articles 280 and 281 of the Interim Constitution. The contention is that the limits within which the Constituent Assembly had to frame the Constitution were well defined in the grund norm of 1949 and the Legal Framework Order and the fundamental rights which have been enshrined in the Constitution, as also guaranteeing of the independence of the judiciary having been given in the earlier part of the Constitution, namely, Part II, the enactment of Article 281 amounts to diluting the effect of the said fundamental rights and the basic concept of independence of judiciary when PLD 1970 SC 397 the superior Courts of the country have been precluded from examining and looking into acts of the functionaries during the regime of the usurper or thereafter before the lifting of Martial Law and the enforcement of the Interim Constitution. It was contended that the Constituent Assembly was tethered to the preamble of the Constitution and could not enact any law against the spirit of the preamble which forms the grund norm of the country and the curtailment of powers of the judiciary under Article 281 is violative of the preamble and the spirit of the preamble. An argument was advanced to show what a Constitution ordinarily should contain and the essentials of a constitutional document in contradistinction to ordinary legislative measures to be placed on the statute book after the Constituent Assembly has framed the Constitution, which enactments are known in the ordinary parlance as sub-constitutional legislation. He referred to page 50 of the Modern Constitution by K. C. Where and invited our attention to page 50 wherein it has been observed by the learned author what the constitution should contain. He also referred to page 32 wherein an example of the inclusion within a Constitution of matter not constitutional by nature is cited as Article 25 his of the Swiss Constitution of 1893 prohibiting the striking of animals for butcher's meat unless they had previously been stunned. On parity of reasoning learned counsel argued that the Constitution should state supreme laws in respect of inter-relationship between the three tiers of the Constitution, namely, the executive, the judiciary and the legislature. Learned counsel also examined the nature of an Indemnity Act, which, according to him, is sub- constitutional legislation, and contended that Articles 280 and 281 being of the nature of Indemnity Act should have been passed by the National Assembly while functioning as a Federal Legislature and not as a Consituent Assembly because under the Legal Framework Order (President's Order No, 2 of 1970) as also President's Order No, 11 of 1972, the only function of the Constituent Assembly in addition to pass a vote of confidence in the President and acceptance of continuance of Martial Law till the 14th of August, 1972 was to frame a Constitution of the country and not to sit as Federal Legislature or to enact any laws during the Session. Therefore, when the National Assembly while functioning as a Constituent Assembly proceeded to incorporate sub-constitutional provisions in the Constitution itself, it violated the preamble which is supra-constitutional in nature and on that ground also A, titles 280 and 281 have to be struck down. He also referred to Article 278 (of the Interim Constitution) which envisages of coming into force of legislature to frame laws for the purpose. It was, however, contended by learned counsel that the Constituent Assembly could not frame laws retrospectively but he conceded that a National Assembly could frame laws retrospectively. The power of validation of illegal acts, which he refused to extend to the Constituent Assembly, he conceded the same for the National Assembly. This is a strange phenomenon and the contradictory stand which remains unexplained. If the National Assembly could legislate retrospectively and could also validate illegitimate laws of the period of the usurper, why could not the father of the Constitution, namely, the Constituent Assembly, brought into being for the purpose, validate the illegitimate laws as incidental provisions for purposes. Of continuity of the ordinary orderly Government of the country, learned counsel had no satisfactory explanation in this respect. When it was pointed out to him that if Article 281(1) is not at all a sub-constitutional provision in the circumstances of the country which are well known, the 1962 Constitution had been abrogated when the usurper took over and with his exit the dormant Constitution has to come back as stated to have been held by the Supreme Court, for whom was it to legislate for the interregnum to avoid chaos as a result of the vacuum when the 1962 Constitution was dormant.
52. Necessarily it was the domain of the Constituent Assembly and not of anybody else, much less the National Assembly, as a legislative body to give validity to the laws, both constitutional and unconstitutional, for the intervening period.
53. ' The further attack by learned counsel on Article 281 is under the three heads, namely, (a) that these provisions have been incorporated by a body which did not have the competence to incorporate any law in the form of legislation, (b) as the provisions are of the nature of a sub- constitutional law, it could not offend against the Constitution, and (c) lastly that it assails against separation of powers as it curtails the powers of judiciary enshrined in the preamble as power of interpretation has been denied to the superior Courts is a repetition of the argument already noticed and need not detain us any snore. Learned counsel referred to McCardle Ex part (1). This was a case where a petition for the writ of habeas corpus was preferred in the Court alleging unlawful restraint by military force. It appeared that the petitioner was not in the military service of United States but was held in custody by military authority for trial before a Military Commission, upon charges founded upon the publication of articles alleged to be incendiary and libellous in a newspaper of which he was editor. Upon the hearing, the petitioner was remanded to military custody ; but upon his prayer, an appeal was allowed to the Supreme Court of the United States and upon filing the usual appeal bond for costs, he was admitted to bail upon recognizance with sureties conditioned for his future appearance in the circuit Court, to abide by and perform the final judgment of the Court. A motion to dismiss this appeal was denied. Subsequently, a repealing Act was passed taking away the appellate jurisdiction of the Supreme Court, and as a consequence, the Court dismissed the appeal for want of jurisdiction. He also referred to Punjab Province v. Malik Khizar Hayat Khan (2) and Abul A'la Maudoodi v. Government of West Pakistan (3), wherein discussion for ab initio void laws and law declared void by Courts has been fully detailed.
54. ' Referring to /Wide 295, learned counsel stated that when the Articles were incorporated, both Muzaffar Qadir and Hussain Naqi were under no liability and it could not be created by the said provisions of the Constitution in any event. The argument again proceeds on the basis that because the provisions of Martial Law Regulations Nos. 16 (a) and 89 had emanated from an incompetent authority and have been declared by the Supreme Court to be void ab initio, any action taken under them was also void and if the initial detention is void, the subsequent validation of that act by the Constituent Assembly in the Interim Constitution will not render that void act in any manner valid. However, learned counsel has not elaborated the argument as to how actions purported to have been taken under the said Martial Law Regulations, which have now been validated by the Constituent Assembly, could be knocked down on that score alone.
55. ' The last limb of the argument was with regard to malice. Learned counsel urged that the only charge mentioned in the charge-sheet is that the detenus were guilty of having written or published objectionable writing but the gravamen of the charge did not explain precisely or even generally what the charge was. This, according to learned counsel, was a violation of the right of the accused to defend. He next
(1) (1869) 7 Wallace (U. S.) 506 (2) PLD 1956 SC (Pak.) 200 (3) PLD 1964 SC 673 referred to the various provisions of the Rules in respect of trial before a Summary Military Court. He referred to rule 95 of the Pakistan Army Act Rules, 1954, as also rules 19, 20, 21 and then to rules 92 and 93, and contended that the Presiding Officer did not take oath and, therefore, even the Court was not properly constituted and assuming without conceding that the ease could have been tried by a Summary Military, Court, as there was no properly constituted Court, the conviction and detention is bad. He then referred to rule 103 with regard to evidence in defence but when it was pointed out to learned counsel from the record that the detenus, when asked whether they would produce defence, had replied in the negative, learned counsel did not press the argument further.
56. Learned counsel also contended that the entire action initiated against the detenus was because of malice which the President and the Provincial Governor had against the two persons and he referred to sonic Press statements made much after the conviction of the detenus which statements do not advance the case of the detenus as it cannot be considered to be a link in the chain of malice which he attempted to establish before us. Some reference was made to the period Muzaffar Qadir was Deputy Commissioner, Sahiwal, when the President was detained in the Sahiwal Jail during Ayub's regime, and counsel attempted to show that the order of the President asking the Governor to proceed against the detenus is tainted with malice. Lastly it was contended that in any case the accusation against the deienus did not constitute an offence under Martial Law Regulations Nos. 16(a) and 89 and since no evidence of character had been recorded, as required by rule 53 read with rule 107, the trial is not yet concluded as no Military Court could functions after the 20th of April, 1972. The detenus, if at all, are to be tried before the ordinary Courts of the civilian Government and as the trial and conviction smack of grudge, the detenus are entitled to release.
57. ' The learned Attorney-General has opened his address with the preliminary objection against the maintainability of the writ petition filed on behalf of Altaf Hassan Qureshi, Dr. Ejaz Hassan Qureshi and Mujibur-Rahman Shami. It has been contended that because the writ petition has been filed by the petitioner Zia-ur-Rahman under Article 98 of the Constitution Act of 1962 and despite the fact that attention of learned counsel was invited to amend the petition as one under the Interim Constitution of 1972, he refused to do so and maintained that since the 1962 Constitution has since revived with the exit of the usurper and is in the field, the petition under Article 98 of the said Constitution of 1962 alone is maintainable and because under the 1962 Constitution he could come before a forum created by that Constitution, namely, the High Court-of West Pakistan, which forum is non-existent today, he cannot invoke the writ jurisdiction of the Lahore High Court, the creature of the Interim Constitution, When his attention was invited to the fact that pending proceedings have been saved before the Courts by virtue of Article 295 of the Interim Constitution, the learned Attorney-General maintained that his objection mainly rests on the refusal of the petitioner to get his case heard under the Interim Constitution because he declines to accept the existence of the Interim Constitution. Ordinarily the technicality raised by the learned' Attorney-General would not have detained us long, but when it is found that the petitioner wants this Court to adjudicate upon his cause under the 1962 Constitution, and not the Interim Constitution, the objection really becomes formidable and is one of great complexity as to whether this Court could function under the 1962 Constitution which has since been replaced by the Interim Constitution.
58. ' The observations at pages 266 and 267 (reproduced above) made by Mr. Justice Salah-ud-Din Ahmed in Asma Jilani's case, which has been the main ground on which Mr. M. Anwar has attempted to raise the edifice of the revival of the 1962 Constitution and the only power of the National Assembly to act as a legislative body merely to amend the 1962 Constitution and in no manner as a Constituent Assembly to frame a new Constitution for the country, have been read before us in detail by the learned Attorney-General and he contends that in no other judgment this question of revival of the 1962 Constitution has been so expressly or impliedly observed. He has drawn our attention to the concluding portion of the judgment of the learned Chief Justice of Pakistan appearing at page 208 of the judgment :- "It remains now for me only to consider another argument advanced by the learned Attorney- General that the attack is directed really against the present regime and not against the regime of General Agha Muhammad Yahya Khan. The learned counsel, on the other side, have all protested that this is not so but in order to leave no room for doubt I wish to make it clear that this decision is confined to the question in issue before this Court, namely, the validity of the Presidential Order No, 3 of 1969 and Martial Law Regulation No, 78 of 1971 and has nothing whatsoever to do with the validity of the present regime. I am fully conscious of the fact that there were very important differences which may well have a bearing on this question The circumstances may well have been totally dissimilar. Again since the preparation of this judgment further developments have taken place of which I am entitled to take notice. The National Assembly has met and ratified the assumption of power by the new President who is an elected representative of the people and the leader of the majority party in the National Assembly as now constituted. The Assembly has also, it is said, ratified an Interim Constitution. Its terms are not known to the Court as yet but these developments may well have radically altered the situation. However, since this question is not before this Court I refrain from expressing any definite opinion with regard thereto."
59. ' He has also argued that similarly Mr. Justice Muhammad Yaqub Ali has taken judicial notice of the coming into force of the Interim Constitution as is evident from the observations appearing at page 250 :- "We also take judicial notice of the fact that after arguments were concluded in these appeals, the National Assembly met and unanimously expressed confidence in the Government of Mr. Zulfikar Ali Bhutto. An Interim Constitution has also been passed and Mr. Zulfikar Ali Bhutto is to be inaugurated as President under this Constitution on the 21st April, 1972. The legitimacy of the present Government is thus beyond the shadow of doubt."
60. ' He next referred to observations at page 252 which are to the following effect :- If laws which were introduced under the old Constitution continue to be valid under the new Constitution this is possible only because validity has expressly or tacitly been vested in them by the new Constitution. The phenomenon is a case of reception. The Laws, which, in the ordinary inaccurate parlance, continue to be valid are from a Juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different."
61. ' Coming to the judgment by Mr. Justice Sajjad Ahmad Jan, he has enumerated the conclusions arrived at by him at page 262 of the judgment and argues that it has nowhere been said that with the exit of the usurper, the 1962 Constitution has revived. The contentions raised by Mr. M. Anwar was further met by the learned Attorney-General by saying that as we read all the four judgments (because the learned fifth Judge has only concurred with the judgment of the learned Chief Justice), the abrogation of the 1962 Constitution by Agha Muhammad Yahya Khan appears to have been accepted on the doctrine of necessity and the Provisional Constitution Order by which he had not only given his own Constitution to the country, but also had said that in other regards the country will be governed as far as possible under the abrogated Constitution of 1962 has not been re-opened by the learned Judges as such an action would have created further chaos in the country which their Lordships were greatly conscious to safeguard against. He further contended that throughout the judgment of the learned Chief Justice, the 1962 Constitution has been referred to as the abrogated Constitution of 1962, and the word "abrogated", according to him, was not added merely as an adjective descriptive of the said Constitution, but according to him it showed that the abrogation by the usurper has been accepted to have been continued in the interest of the country. It was next contended that when the agitation in the country started in 1968, which has been alluded to in great detail by Mr. Justice Muhammad Yaqub Ali in his judgment at page 220, the demand of the people was that the 1962 Constitution was not according to the accepted goal of the people to have a Parliamentary form of Government. This general demand of democratization of the Constitution, the replacement of the Presidential system by the Parliamentary system and holding of elections on the basis of direct adult franchise naturally meant throwing over board the Constitution of 1962, and that popular demand as a matter of fact was met by the usurper when he abrogated the Constitution. He maintained that this abrogation of the Constitution has not been in any manner set aside by the Supreme Court judgment and the observations (reproduced above) of Mr. Justice Salah-ud-Din Ahmed, according to learned counsel, which his Lordship has made while considering an objection that the Supreme Court being a creature of the 1962 Constitution itself could not have gone against that Constitution, is not the law declared by the Supreme Court. In this connection he referred to the following headnote in Malik Muhammad Usman v. The State and another (1).
62. "Constitution of Pakistan (1962), Art. 63-Majority decision of Supreme Court-Minority observations 'though entitled to the very highest respect' do not constitute 'decision' of Supreme Court within meaning of Art. 63-Absence of any 'dissent' in majority decision from such observations does not mean that minority view must be deemed to have been necessarily accepted by Judges in majority."
63. ' He also drew support from observations of Mr. Justice Salah-ud-Din (1) PLD 1965 Lab. 229 Ahmed that even if the Constitution be considered to have revived, as contended on the other side, it could have been validly replaced by the elected representatives of the people and as the chosen representatives who met in Islamabad on the 17th of April, 1972 have met as a Constituent Assembly for which purpose they had, as a matter of fact, been elected by the body politic, they have validly enacted a new Constitution and as such the condition laid down by Mr. Justice Salah- ud-Din Ahmed has been fulfilled and the Constitution of 1962 is no more in the field. Further more, it was contended that because the Provisional Constitution Order has been validated by the Interim Constitution and that validation is immune from attack, notwithstanding any judgment of any Court, the provision in the Provisional Constitution Order abrogating the Constitution of 1962 becomes operative from the 25th of March, 1969 and the entire argument of the revival of the 1962 Constitution pales into insignificance.
64. ' The further argument that the Interim Constitution is invalid for three-fold reasons, namely, (i) the 1562 Constitution could not be repealed by the National. Assembly and at best it could be only amended within the framework of 1962 Constitution under its Article 208, (ii) that the Interim Constitution offends against the grund norm, and (iii) that it has been framed by an incompetent Assembly because the majority party of the Eastern Wing of the country was not present, the learned Attorney-General again referred to the factum of the present regime having come into existence in a legitimate manner and invited the attention of the Court to the judicial notice of the fact having been taken by Mr. Muhammad Yaqub Ali at page 250 of the report. To the suggestion that the view of Mr. Justice Muhammad Yaqub Ali is obiter, the learned Attorney-General argued that even the learned Chief Justice has affirmed the same view and he further argued that how could the 1962 Constitution be considered to be in any manner in accord with the grand norm of which Mr. M. Anwar, learned counsel for the petitioner, is so enamoured. He invited the attention of the Court to the amendments made in 1963 in the preamble of the abrogated Constitution of 1962 and Part II pertaining to Fundamental Rights. According to the learned Attorney-General, the grund norm, the Objectives Resolution of 1949, is something which is the goal of the country and the nation. It contains the national ideology but it does not mean that this is Constitution of the country. The Constitution has to be framed in the light of that aim, goal, ideology and the final object and, therefore, to say that the Interim Constitution offends against the grund norm is not at all established because the Interim Constitution in no manner sins against the basic ideology of Pakistan. He contended that the country has been passing through a great crisis and if the chosen representative of the people has summoned the Constituent Assembly, elected on the express condition that they would come together and frame a new Constitution of the country, it cannot be said that in this critical period because of absence of majority members of the Eastern Wing, the Interim Constitution given by the Constituent Assembly is in any manner illegal or invalid. He has further maintained that the grund norm is not enforceable through the Courts of law, it is merely a guideline for the chosen representatives of the people and it is not shown how that grund norm has been departed from in the Interim Constitution. He referred to the following passage from page 182 of the judgment in Asma Jilani's case ' Our own grund norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of. Pakistan on the 7th of March, 1949...
65. ' The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system 'the law rules through the utterance of justice, and the power of the Governor carries out of the utterance of it'.
66. ' The trustees under this concept of ours are referred to as{{URDU TEDXT}}`those who are in authority among you' (Pt. 4, Ch. 4, Ay, 60 ; Al-Nisa, p. 207 which again negates the possibility of absolute power being vested in a single hand, for the reference is clearly to a plurality of persons and to an authority properly constituted by law,"
67. ' Adverting to the question of validity of laws during the period of usurper and thereafter from the 20th of December. 1971, to the 20th of April, 1972, the learned Attorney-General maintained that in view of Asma Jilanis case, all Martial Law Regulations and Martial Law orders promulgated by the usurper having originated from an illegitimate source have been held by the Supreme Court to be invalid because of that incompetency and some of these laws have been permitted to be preserved and continued on the doctrine of necessity keeping in view the principles laid down therein. Coming to the post-exit period of the usurper, namely, the 20th of December, 1971, to the 20th of April, 1972, the learned Attorney-General contended that the source was not incompetent.
68. The source of the chosen representatives of the people whose assumption of office had been ratified by the Constituent Assembly could not be said to be in any manner illegitimate or incompetent. In this regard, the learned Attorney-General again referred to the observations of Mr. Justice Muhammad Yaqub Ali at pa e 250 and argued that because illegitimacy of the various Martial Law Regulations and Martial Law Orders etc was because of incompetence, which defect cannot be attached to the Regulations and Orders passed or enforced by Mr. Zulfiqar Ali Bhutto as a chosen representative of the people, all acts done, orders passed, or Martial Law Orders issued by him are not to be treated on a par with the Martial Law Regulations and Martial Law Orders issued by the usurper. They are not at all incompetent or illegitimate and the mere fact that these orders have been labelled as Martial Law Orders will not make them invalid or illegal and illegitimate According to him as all those Martial Law Regulations and Martial Law Orders have been validated by the Constituent Assembly on the 17th of April, 197, and that Constitution has come into force on the commencing day, namely, the 21st of April, 1972, all those Martial Law Regulations and Martial Law Orders stand. Validated and they are also ratified and cannot ne questioned because the said atrial Law Regulations or Martial Law Orders do not suffer from incompetency or illegitimacy.
69. According to him it was merely a question of ratification, which has been done. He also justified the promulgation of those Martial Law Regulations and Martial Law Orders by the President in the absence of the National Assembly by virtue of his office of President. It was contended by him that in the critical period of emergency prevailing in the country and the non-availability of the Constituent Assembly and the various problems obtaining in the country, if the President in his wisdom has taken certain actions and passed certain orders, which were subject to ratification and validation by the National Assembly, which ratification and validation has since been obtained, all such Orders and Regulations will not be open to challenge and will not be treated as illegitimate and invalid. He reiterated that the contention on the other side that Mr. Justice Muhammad Yaqub Ali has taken judicial notice of a point which was never raised before the Court and was not the subject of debate and, therefore, it is obiter dicta, pales into insignificance in view of the crisis, the emergency and a great distress that has visited this country and the position obtaining that the usurper has been made to surrender power to a chosen representative of the people and that chosen representative has obtained ratification of his acts by the Constituent Assembly, which has been convened to frame a Constitution of the country and to have a fresh start. The learned Attorney-General argued that the entire fabric of laws for the period front the 20th of April, 1972, shall have to be treated to be valid in view of Article 281 of the Interim Constitution, irrespective whether they have been passed by the President as President or as Chief Martial Law Administrator.
70. ' He next referred to Article 216 of the Interim Constitution, wherein. The Federal Legislature has been empowered by Act to establish one or more Administrative Courts and Tribunals, The learned Attorney-General argued that the judicial power rests with the Courts and he has even before the Supreme Court in Anna case taken that stand on behalf of the Government. All that he urged is that jurisdiction of the Courts may be curtailed, and one such example was that of the Administrative Courts and Tribunals as envisaged under Article 21:6 of the Interim Constitution.
71. However, he did not join any issue on the observations made by certain writers on Constitutional Law that in a written Constitution the superior Courts have to act as watch dogs and the judicial power rests in the judiciary and they have to act as references as and when there is conflict between the executive, the Legislature or some other organ of the State. Fie referred to Mr. Fazi-ul- Quader Chowdhry v. Mr. Muhammad Abdul Hag (1) at pages 52 , 537 and 539 to show that the judicial power is distinct from jurisdiction while judicial power is there and cannot be taken away, the jurisdiction can be curtailed in some cases if the legislature so desires or the Constitution so lays down. The third objection as to the invalidity of he Interim Constitution raised by Mr. M. Anwar that it has been framed by an incompetent Assembly in the absence of the members from the Eastern Wing of the country, the learned Attorney-General maintained that facing the reality as it is, the Constituent Assembly was convened under the
(1) PLD 1963 SC 486 National Assembly (Short Session) Order, 1972, and if the members from the other wing have not been able to participate because of their physical incapacity the Constitution framed by the members present in the Assembly is not any manner defective. He referred to Articles 67(2), 72, 73 and 95 and argued that absence of some members from the Assembly would not affect the validity of the Constitution framed by the members present. He also invited our attention to pages 208, 251 and 252 of the judgment in Asma Jilani's case.
72. ' The next argument advanced by him as to the validity of the laws under Article 281(1) was that the laws were validated by the Constituent Assembly because the Supreme Court could not legislate and could only condone the defect of illegitimacy, i,e, could only disregard the defect, while, on the other hand, the Constituent Assembly having plenary power, is empowered to validate even illegitimate law or order that has been framed by an incompetent usurper. Coming to Article 281(2), he argued that transactions past and closed could not be re-opened and similarly as the validation was for all acts done or orders made, the orders passed during the Martial Law regime right from the 25th of March, 1969 were immune from attack in this Court and as this Court has been brought into being under the Interim Constitution and the judiciary is under an oath to preserve the Constitution, Article 281(2) being a part of that Constitution could not be questioned, as intent of the legislature much less of the Constituent Assembly could not be questioned in a Court of law. He next argued that, as per judgment of the Supreme Court, the laws were invalid because their source was incompetent and the moment the invalidity of source is removed by ratification or validation thereof by the Constituent Assembly, admittedly, a competent authority, the defect disappears and the laws no longer remain invalid and all acts done or orders made under these laws having also been validated retrospectively would be immune from attack. He referred to Muhammad Umar Khan. v. The Crown (1) at page 544 and Punjab Province v. Malik Khizar Hayat Khan (2) at page 207. To the objection raised that the validation clause or the indemnity clause as framed by the Constitution in the form of Article 281 could be viewed only in the form of protection to be provided to innocent people but at the same time it would not be considered to be a measure to perpetuate the injustice done to innocent people by keeping them behind bars for the offences which have been created under the illegitimate law or for which they had been convicted by illegitimate Tribunals, which had no authority under the law, the learned Attorney-General submitted that Article 281(1) and the concluding words of Article 281(2) are a complete reply to the objection. He argued that the words "shall be deemed to be and always to have been validly made, taken or done cover both the transactions, past and closed, and have also rendered immune from attack in future the transactions which could be considered to be otherwise a continuing wrong. According to him there would be no continuing wrong, as fundamental rights are applicable for the future, that is prospectively, and all that has been done before the enforcement of the fundamental rights could not be questioned. The objection put forward that if a person had been convicted for an offence under a law, which was invalid and the order was by a Court which also had not been validly constituted and the man is undergoing punishment awarded and in such circumstances whether his further detection will be a continuing wrong and would not be subject of examination under the Interim Constitution, his reply was that no such case would
(1) PLD 1953 Lah. 528 (2) PLD 1956 SC (Pak.) 200 have arisen because with the validation of illegitimate laws, anything done under that law had also been made immune from attack under Article 281(2). The learned Attorney-General even went on to say so as to contend that by the use of the words "done or purported to have been done", the acts which suffered from lack of good faith were also rendered immune, because according to him exercise of powers under Article 201 is subject to the constitution itself. The learned Attorney- General referred to Mian Iftikhar-ud-Din v. Muhammad Sarfraz (1) and Muhammad Khan v. The Border Allotment Committee (2). His attention was drawn to the observations made at page 186 of the judgment of the learned Chief Justice of Pakistan wherein a passage has been quoted from Halsbury's Laws of England Volume 7, Third Edition, saying that malicious acts will not be protected by an Act of Indemnity. His attention was also invited to East and West Steamship Co. v. Pakistan
(3) wherein it has been held that acts tainted with malice are open to judicial review. He, however, invited our attention to Mr. Fazlul Quader Chowdhury v. Mr. Muhammad Abdul Haque (4) as also Malik Toti Khan etc. v. The District Magistrate, Sibi and Ziarat (5) and Muhammad Usman v. State
(6) to show that such a challenge could not be made on the principles of fundamental rights after the validation of the laws by virtue of which the acts done, transactions made and orders passed had also been validated and cannot be impugned. Towards the close of his arguments, the learned Attorney-General states that there has been no malice in all the cases pending before this Court, and for the purpose he referred to Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (7), Mian Iftikhar-ud-Din and another v. Muhammad Sarfraz, Azizur Rahman Chouahry v. M. Nasiruddin and others (8), Muhammad Khan v. The Border Allotment Committee and G. L. Battacharya v. State (9). Lastly he argued that for his main plank for immunity from examination of the acts done and orders passed during the Martial Law regime, he firstly relies on Articles 281 and 295 independently, and in the alternative under both the Articles taking them jointly. He argued that because the Martial Law was to come to an end and the Military Courts were likely to cease to function and if because of this directive of the Central Government the hearing of the cases has been accelerated from the 15th of April, 1972 to the 13th of April, 1972, this fact alone will not itself be sufficient to establish malice otherwise.
73. ' Mr. Fazle Hussain, Advocate has also addressed the Court on the scope of Article 281 of the Interim Constitution. He maintained that the first clause of the Article deals with the validity of law, while the second clause gives validity to actions taken and the third clause is that of indemnity. He argued that all proclamations, Martial Law Regulations and Martial Law Orders have been validated and notwithstanding any judgment of any Court, have been declared to have been validly made by competent authority, and shall not be called in question in any Court. Coming to the validity of the actions taken and orders made, sub-clause (2)
(1) PLD 1961 SC 585(2) PLD 1965 SC 623 (4) PLD 1963 SC 486 (6) PLD 1965 Lah. 229 (8) PLD 1965 SC 236
(3) PLD 1958 SC 41 (5) PLD 1957 Queita I (7) PLD 1969 SC 14 #TBS (9) PLD 1964 SC 503 #TBE has, by legal fiction, made these orders immune by saying that such orders made, actions taken or purported to have been made or taken shall be deemed to be validly made, taken or done and shall be deemed always to have been validly made, taken or done. He contended that the phrase "to be" is one futurity and the deeming clause covers both the past and future. Therefore, all actions taken and orders made shall be deemed always to have been validly made and shall be deemed to be validly made whenever that question arises before a Court of law. He based this argument on the phrase "to be" in Stroud's Judicial Dictionary (Volume IV at page 3038).
74. ' Coming to the word "deemed", he referred us to Stroud's Judicial Dictionary (Volume I at page 754) which says that "when a thing is to be deemed something else it to be treated as that something else with the attendant consequences".
75. ' He also invited our attention to Muhammad Akram Khan v. Islamic Republic of Pakistan (1). He also referred to Mir Ahmad Nawaz Khan v. Superintendent, District Jail, Lyallpur (2). Next he addressed the Court on the effect of repeal by reference to Article 295 of the Interim Constitution, which according to him, is in line with section 6 of the General Clauses Act and argued that notwithstanding the repeal, the actions taken, sentences passed and pending proceedings would be continued as if the original Act had not been repealed. Reliance was placed on Sona v. The state (3), Mubarak Ali v. The State (4), Mir Ahmad Nawaz Khan Bughti v. Superintendent, District Jail, Lyallpur (supra).
76. ' The third point urged by him was that laws inconsistent with the Preamble or Principles of Policy cannot be enforced through Courts of law. He referred to Article 28 of the Interim Constitution which is reproduction of Article 8 of the 1962 Constitution, and argued that in such a case the remedy was not before a Court of law because such rights could not be enforced through a Court of law and the remedy was with legislature. Reliance was placed on Labour Federation of Pakistan v. Pakistan (5), Punjab Province v. Malik Khizar Hayat Khan Tiwana (6), and Tanbir Ahmad Siddiky v.
77. Province of East Pakistan (7). As regard the jurisdiction of the superior Courts, A. K. Fazlul Quadir Chaudhury v. Shah Nawaz (8) was cited.
78. ' Taking up the principles of validation, learned counsel referred to the observations made in Usif Patel v. The Crown (9) and Zain Nurani v, Secretary of the National Assembly of Pakistan (10). The other point argued by him was that the declaration of law by Supreme Court in the Supreme Court judgment ceases to have effect after the abrogation of the provisions on which it was based, and he placed reliance on Tanbir Ahmad Siddiky v. Province of East Pakistan (supra).
79. ' Coming to "transactions past and closed" and the principles governing such transactions, learned counsel again referred to Tanbir Ahmad Siddiky v. Province of East Pakistan (11).
(1) PLD 1969 SC 174 (2) PLD 1966 SC 357
(3) PLD 1970 SC 264 (4) PLD 1965 Lah. 102
(5) PLD 1969 Lah. 188 (6) PLD 1956 SC 200
(7) PLD 1968 SC 185 (8) PLD 1966 SC 105
(9) PLD 1955 FC 387 (10) PLD 1957 SC 46
(11) PLD 1965 SC 236 ' The learned Advocate-General opened his address on behalf of the Provincial Government and his first argument was that under Article 280(1) of the Interim Constitution all existing laws, except as provided by the said Article, have been continued in force, so far as applicable. The term "existing laws" has been defined in Article 280(8), meaning all laws (including Ordinances, Orders- in-Council, Orders, Rules, bye-laws, regulations and Letters Patent consisting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity immediately before the commencing day. He argued that by continuing the existing laws there was no necessity to make provisions for continuation of acts done, proceedings taken or orders made under the existing law because if the law was valid, the action taken would be valid or invalid if it has been or has not been performed within the four corners of that Jaw and if it is not covered by the statute itself, it will be subject to judicial review by this Court subject of course to ouster of jurisdiction, if any, provided by the Constitution itself.
80. ' Coming to the Martial Law Regulations and Martial Law Orders he contended that Article 281 is an Article postulating ouster of jurisdiction and is not an indemnity clause stricto senso. He maintained that the Proclamations, Martial Law Regulations and Martial Law Orders and even actions under those Orders and Regulations became invalid in view of the Supreme Court judgment in Asma case, which has declared entire period from the 25th of March, 1969 to the 20th December, 1971, as the period of the usurper and all laws made by him and actions taken were illegitimate before the commencing day of the Interim Constitution. Since the vacuum so created could not be envisaged and for purposes of continuity of the Constitutional Institutions in the Country the Constituent Assembly validated all laws, all proclamations, Martial Law Regulations and Martial Law Orders etc., by enacting sub-Article (I) of Article 281 and this validation is immune from attack before any Court notwithstanding any judgment of any Court, as the language of the said sub-Article is plain on the point. He argued that when the proclamations, Martial Law Regulations and Martial Law Orders have been once validated and rendered immune, some of them have been retained and allowed to continue as Acts of the appropriate legislature, while others have been repealed. According to him. In case of repealed Martial Law Regulations, Martial Law Orders or President's Orders, the proceedings taken, the orders made or actions done have been saved by Article 295 of the Constitution Act which deals with repeal and effect thereof. As regards the Martial Law Regulations and Martial Law Orders validated and continued, if sub-Article
(2) of Article 281 had not been enacted, the validity thereof could have been subject to judicial scrutiny because validation would not result in immunity in future as well and that was the intention of the Constituent Assembly. The intention clearly was to save and protect all proceedings taken, orders passed before the commencing day and this protection has been furnished in the Constitution itself in the form of Article 281(2). He further argued that there will be no conflict in cases where the invalid laws have been validated and repealed and then effect of repeal saved by Article 295(b) wherein the word 'duly' has been used and cases covered by invalid Martial Law Regulations and Martial Law Orders which had been validated and thereafter continued and the actions whereunder rendered immune from being assailed before a Court of law because once all Martial Law Regulations have been validated, actions thereunder have been rendered immune under Article 281(2), both in the case of repealed and unrepealed Martial Law Orders and Martial Law Regulations and for the purposes of unrepealed Martial Law Regulations and Martial Law Orders, sub-Article (2) is complete bar while for Martial Law Regulations which have been repealed not only sub-clause (2) provides cover but also under Article 295 actions taken can be continued as envisaged in Article 295. He further maintained that the word 'duly' appearing in sub-clause (b) of Article 295 for cases of illegal Martial Law Regulations and Martial Law Orders validated under Article 281(1) and repealed will be taken as a term used by way of abundant caution because acts done, proceedings taken etc., will be otherwise immune from attack under Article 281(2). The learned Advocate-General conceded that if some action is taken under an unrepealed validated Martial Law Regulations or Martial Law Orders after the commencing day, it will be subject to judicial review as an Act of the appropriate legislature. He, however, maintained that all orders made, proceedings taken and acts done by any authority or by any person which were made, taken or done on or after the twenty-fifth day of March, 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done and will, therefore, be immune from attack.
81. ' Relying on Punjab Province v. Malik Khizar Hayat Khan (supra), the learned Advoate-General has argued that there is no embargo on the powers of the Constituent Assembly to include any provision of law which may pertain to "provisions as to the Constitution of the dominion" within the Constitution itself. He specifically placed reliance on pages 205, 206 and 207 of the report. Next he referred to Abdul Rauf v. N.- W.F.P. Government (1). In this case certain laws have been validated with retrospective effect to render ineffective the judgments pronounced in certain cases whereby certain laws had been declared invalid. Their Lordships of the Preshawar Bench ruled that the acts having been validated, the orders passed and executed could not be called in question. The observations in Abdul Aziz v. Province of West Pakistan (2) were also adverted to. The learned Advocate-General next cited Muhammad Ali and Sons v. The Chief Commissioner of Karachi (3) and Pakistan v. Devachand Muljimal (4) in support of the contention that the Constitution could include legislative provisions which otherwise could have been framed by the legislative authorities.
82. ' Referring to the word "deemed" appearing in sub-clause (2) of Article 281, the learned Advocate- General has invited our attention to Begum B. H. Syed v. Afzal Jehan Begum (5) wherein it has been held, following the law laid down in East End Dwellings Co. v. Finsbury Borough Council (6) that it is a legal fiction which has to be determined, taking into consideration the intents, reasons therefor and purposes and once those iimits had been determined the Court will not take into consideration the facts and will not be boggled by the attendant and appurtenant consequences that flow out of the legal fiction. To the same effect is Shaukat Ali v.
(I) PLD 1958 Pesh. 73 (2) PLD 1958 SC (Pak.) 499
(3) PLD 1957 Kar. 320 (4) PLD 1968 Kar. 107
(5) PLD 1970 SC 29 (6) (1951) 2' All E R 587 Settlement and Rehabilitation Commissioner (1) and Commissioner of Income-tax Bombay Presidency v. Bombay Trust Corporation Ltd. (2).
83. ' Taking up again the construction of clause 2), the learned Advocate-General referred us to the word "purported" appearing therein. He argued that as the word hay not been defined in the Constitution Act or in the General Clauses Act, we have to fall back on the dictionary meaning.
84. According to Oxford English Dictionary, Volume VIII, at page 1627, it means ti .. To profess or claim by its tenor (said without pronouncing as to the truth or validity of the claim)."
85. ' He also referred to the 'Encyclopedia of the Laws of England with Forms and Precedents' Volume XII (Second Edition) wherein "purporting" has been defined as :- "Purporting.-When power is given to do something 'purporting' to have a certain effect, it will seem to prevent objections being urged against the validity of the act which might otherwise be raised.
86. Thus, where a mortgage deed contained a power of sale to be exercised by the mortgagee after default with a proviso that, upon any sale purporting to be made in pursuance of the power, the purchaser should not be bound to inquire whether default had been made in payment of any principle and interest, or as to the expediency of selling, etc., it was held that a sale which was made under that proviso to a bona fide purchaser without notice was valid, even though it turned out on balancing accounts that nothing was due to the seller. It was said that the word 'purporting' showed that the transaction might really not be a sale at all, that is, that the power would not be really exercisable, yet that the mortgagee should have absolutely vested in him the right to sell so as to give a good title Dicker v. Angerstein (1876) 3 Ch. D.
600. In the corresponding proviso in the statutory power of sale in the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, section 21(2), the phrase is 'professed exercise', and not 'purporting' (see Here v.
87. Copland (1862) 13 Ir. Corn. L.
88. 426."
89. ' Next he referred to Qamar Ara Beg= v. The Chief Settlement Commissioner (3) wherein the word "purport" has been considered sufficient to oust the jurisdiction of the Court.
90. "Mr. Wasim Rizvi, the learned counsel appearing for the Department, has raised a preliminary objection that the jurisdiction of this Court is barred by Martial Law Regulation No,
89. He has further contended that the jurisdiction of this Court is further barred under Martial Law Regulations 88 and
93. In support of his contention the learned counsel has referred us to an unreported decision of the Supreme Court in Civil Appeals Nos. K-10 and K-11 of 1962 decided on 11th March, 1964, by the Supreme Court of Pakistan. In that case, which also arose under Martial Law Regulation No, 89, their Lordships declined to interfere with the order of the competent authority on the ground that under the above-mentioned Regulation the jurisdiction of the Courts is completely ousted. In this connection their Lordships observed as under :-- 'It appears to us that the Martial Law Regulation 88, as amended by
(1) PLD 1965 Lah. 445 (2) AIR 1930 P C 54
(3) PLD 1966 Kar. 535 ' Martial Law Regulation 93 altogether cuts the jurisdiction of the Court in respect of acts does or purported to be done in exercise of the powers under any Martial Law Regulation. The impugned order having been passed by Mr. A. Raul Chaudhary in exercise of the power granted to him by Martial Law Regulation No, 89 is thus immune from attack or challenge in a Court of Law.'
91. ' After hearing the learned counsel for the parties, it appears to us that the contention of the learned representative of the Department is well founded. Even if we come to the conclusion that the order of the competent authority under Martial Law Regulation No, 89 is erroneous and without lawful authority, it is not open to this Court to set aside, that order because under the above- mentioned Regulation any order purported to have been passed under Martial Law Regulations is not open to challenge before the High Court or the Supreme Court. We are, therefore, of the view that this Court has no jurisdiction to consider the validity of the impugned orders."
92. ' Next in line are Khair Muhammad Khan v. The State (1) and Iftikhar-ud-Din v. Muhammad Sarfraz (supra).
93. ' Adverting to mala fide acts, the learned Advocate-General contended that if there is ouster of jurisdiction, the Court will not look into the question of mala fide either. He propounded the theory that the Court will not make the allegation of mala fides a ground for examining a particular case and then assume jurisdiction for the purpose. He, however, contended that judicial power rests with the Court that there can be no curtailment of jurisdiction and it will be for the superior Courts to say whether they have or do not have jurisdiction in a particular case ; but at the same time if the jurisdiction has been ousted by a particular statute or by the Constitution itself, the Court will not assume jurisdiction to examine the case on the question of malice because once the Court comes to the conclusion that its jurisdiction has been ousted, it will not go into the question of malice either.
94. ' On the question of past and closed transactions, which he, styled, cases in which sentences have been passed and persohs convicted, he contended that such convictions cannot be challenged under the Interim Constitution because those will be past and closed transactions and for this purpose be has relied on Abul A'la Maudoodi v. Government of West Pakistan (supra). He also relied on Provisional Constitution Order, 1969, which has been validated under Article 281. The next authority referred to by him was Aziz-ur-Rahman v. M. Nasiruddin (supra) wherein it was observed :- "Actions, however, taken and completed 'long' before Constitution of Pakistan (1952) came into force (when Martial Law Regulations or Martial Law Orders had not yet been repealed) would not be lightly interfered with by Courts, particularly, when such interference would create further chaos in management of company affected by Order .
95. ' Actions, not in accordance with Order, also immune in cases in which protection of Martial Law Regulation (C. M. L. A.) No, 88 and
(1) PLD 1966 SC 60i ' Martial Law Regulation (C. M. L. A.) No, 93 is available-Persons authorised by a Martial Law Regulation or Order to perform any function or exercise any power included in term Martial Law Authorities-`Past and closed transactions'."
96. ' He also invited the attention of the Bench to pages 172 and 173 of the Supreme Court judgment delivered by Mr. Justice Muhammad Yaqub Ali. In respect of validation of the laws of the Martial Law regime and the effect thereon of Article 281.
97. ' Coming to Muhammad Mukhtar Rana's case, he said that the judgment has not been pronounced and under President's Order No, 14 of 1972, paragraph 4, as the case has been referred for confirmation of the finding recorded by the Special Military Court, the case will be dealt with by the President or the Governor, as the case may be, uhder the said paragraph. He placed before the Court the distinguishing features of the trial in the Special Military Court. He maintained that after the finding is recorded by the Military Court, it is sent up for confirmation to the higher authorities and if the finding is confirmed, it is then promulgated by the Military Court and only then it becomes operative and executable ; while in the case of the Summary Military Court, the finding is recorded by the Military Court and it becomes executable there and then without confirmation and that finding is promulgated and is sent up for counter signature after promulgation. He pointed out that in the case of Muhammad Mukhtar Rana, although he (the Advocate-General) had given the undertaking before the Supreme Court that final order will not be pronounced by the Military Court.
98. All that he meant was that final orders according to Martial Law, namely, the promulgation of the conviction and sentence awarded, if any, will not be made during the pendency of the matter before the Supreme Court and this is exactly what has been done, because recording of finding by the Special Military Court has not attained finality yet, although qua the Special Military Court the trial is concluded.
99. ' Next he referred to Abdus Sattar Khan Niazi v. The Crown (1) in which the proposition that calling of witnesses by the Court Martial or other authority constituted under Martial Law is no ground for an order of release under section 491, Cr. P. C. The relevant observations are reproduced below :- ". . . . . . As to (3) the expression 'acting in a judicial capacity' in section 6 of the Act ; is, to my mind, meant mainly to emphasise the duty of adjudication as distinguished from administration and meeting the requirements of military exigencies. The word 'capacity' here is not without significance, one may be vested with various capacities for exercising various kinds of functions, 'judicial capacity' describes only the character in which the work is to be performed. In any event, the calling or not calling of witnesses by the Court Martial or other authority constituted under Martial Law is no ground for an order of release under section 491, Cr. P. C."
100. Applying the test laid down at p. 207 of the judgment (in Asma Jilani's case) for condonation of usurper's acts, whether legislative or otherwise, the elections in the country held in 1970 under the Legal Framework Order, 1970, have been saved. A large number of legislative measures adopted A under the Proclamation of the 25th of March, 1969 and the Legal Framework Order are transactions past and closed and stand condoned on the
(1) PLD 1954 FC 187 doctrine of necessity enunciated by the learned Chief Justice of Pakistan. Viewed from this angle, the 1962 Constitution, as it stood on the 24th of March, 1969, is a matter of the past. Future, the developments that have taken place in the constitutional history of the country after the 14th of April, 1972 have no doubt radically altered the situation ; even the Proclamation of the 25th of March, 1969 abrogating the 1962 Constitution has been validated. Judicial notice has been taken of these developments and the legitimacy of the present Government has been held to be beyond the shadow of doubt (page 250 of the judgment refers). The objections that the Constituent Assembly could sit only as a National Assembly to amehd the 1962 Constitution and could not frame a new Constitution, alongwith the allied objections already noticed in the arguments of learned counsel for the petitioner, pale into insignificance because of the peculiar circumstances obtaining in the country, and the learned Attorney-General is on a firm ground in saying that the previous dispensation has been validly replaced by the Interim Constitution framed by the chosen representatives of the people and the 1962 Constitution is no longer in the field.
101. ' Sovereignty of the Constituent Assembly has been canvassed before the Court by counsel for the parties at great length. Mr. S. M. Zafar has argued that the Legal Framework Order was the charter for the National Assembly and in this respect he also pressed into service the observations in Maulvi Tamiz-ud-Din's case, reproduced earlier. Mr. M. Anwar and Dr. Khalid Ranjha, on the other hand, argued that the National Assembly, if found to have met as a Constituent Assembly, it was tethered to the ground norm enshrined in the Objectives Resolution of 1949 and any Constitution or any provisions of the Constitution framed by the Constituent Assembly that offends against the said grund norm shall have to be struck down by the statutory Courts of the country.
102. ' A writer on Constitutional Law has aptly remarked that a Constitution is not the beginning of a community ; nor does it originate or create institutions of Government. Instead, it assumes the existence of an established system, which is still to continue in force, and is based on or pre- existing rights, laws and modes of thought. A written Constitution sanctifies and confirms general principles ; it does not bring them into existence. Thus, a Constitution is not the cause, but a consequence of personal and political freedom.
103. ' The authority behind a Constitution has been described to be :
(1) An alien paramount authority giving a Constitution to the people under its sovereignty ;
(2) a popularly elected Constituent Assembly ;
(3) the people themselves adopting a Constitution in a referendum ;
(4) a de facto sovereign authority putting an end to its own authority and transferring power to other hands by a constitutional document ; and
(5) a hitherto sovereign authority imposing permanent limitations on its own powers.
104. ' A. V. Dicey while dealing with existence of actual limitations to power not inconsistent with sovereignty, in Part I Chapter I, pertaining to the Sovereignty of Parliament in his work 'An Introduction to the Study of the Law of the Constitution, (10th Edition) has observed at pages 76 and 80 :- ' The actual exercise of authority by any sovereign whatever, . . .. . . Is bounded or controlled by two limitations. Of these the one is an external, the other is an internal limitation.
105. "The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws."
106. ' To illustrate his viewpoint the learned author has at pages 78, 79 and 80 referred, amongst other cases, to the French National Assembly of 1871 and remarked that the said Assembly "was emphatically the sovereign power in France. The majority of its members were (it is said, prepared for a monarchical restoration, but they were not prepared to restore the white flag : the Army which would have acquiesced in the return of the Bourbons, would not (it was anticipated) tolerate the sight of an anti-revolutionary symbol : 'the chassepots would go off of themselves'. Here we see the precise limit to the exercise of legal sovereignty ; and what is true of the power of a despot or of the authority of a Constituent Assembly (underlining* is mine) is specially true of the sovereignty of Parliament ; it is limited on every side by the possibility of popular resistance.......
107. ' The internal limit to the exercise of sovereignty arises from the nature of sovereign power itself.
108. Even a despot exercises his power in accordance with his character, which is itself moulded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs . People some times ask the idle question why the Pope does not introduce this or that reform? The true answer is that a revolutionist is not the kind of man who becomes a Pope, and that the man who becomes a Pope, .Has no wish to be a revolutionist . Here again the internal check works together with the external check . . . .
109. ' K. C. Wheare in the 'Modern Constitutions' (1967 Reprint) observes at pages 54 to 56 :- "Most modern Constitutions have followed the American model and the legal and political theory that lies behind it. The people, or a constituent assembly acting on their behalf, has authority to enact a Constitution. This statement is regarded as no mere flourish. It is accepted as law. The Courts of the Irish Free State spoke of the Constitution of 1922 as having been enacted by the people, and the Courts of Eire speak in the same way of the Constitution of 1937. The Supreme Court of the United States regards the people as having given force of law to the Constitution. In an early case, McCulloch v. Maryland in 1819 (4 Wheaton 316), Chief Justice Marshall said : `The Government proceeds directly from the people ; is 'ordained and established' in the name of the people ; . . . . . In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. . . It is the Government of all ; its powers are delegated by all ; it represents all, and acts for all',"
110. Id 5 *More in italics] "What seems to emerge from an examination of Constitutions is that, from the strictly legal point of view, they have legal authority because they have been enacted by a body recognized as competent to give them force of law. This body is either some external legislative body like the Parliament of the United Kingdom or it is the people of the territory or it is a constituent assembly chosen in some way, often by the people, and recognized to have authority to establish a Constitution."
111. ' To the question that most Constitutions claim to possess the authority not of law only but of supreme law, the answer furnished by the author is : "There are two main types of answer to this question. The first may be described as an answer based upon the logic of the situation. It asserts that from the very nature of a Constitution it must follow that it has superiority over the institutions which it creates. That is the whole idea of a Constitution. It is not just an ordinary law, ..................... Its function is to regulate institutions, to govern a Government.
112. "Another line of argument by which the supremacy in law of a Constitution is demonstrated is that the Constitution is the product of a body which has power to make supreme law .........................................
113. Of Bearing in mind the principles above, it has to be determined whether our grund norm is the supra- Constitutional document as contended on behalf of the petitioners or a guideline for the Constituent Assembly a maintained by the learned Attorney-General. After giving earner consideration to the arguments on both sides, I find that under the grund norm, as enunciated in Asma Jilani's case, the trust for discharge sovereign functions has been reposed in the people.
114. They have to exercise their choice in free and fair elections for a Constituent Assembly to from the Constitution and thus the main purpose of the grund norm is served. For the actual task of framine a Constitution for the country set before the popularly elected representatives of the people, the grund norm is to serve as the external and internal limitations to actual exercise of authority by any sovereign, as postulated by A. V. Dicey, in the quotation reproduced earlier. Put differently a popularly elected Constituent Assemble exercising the delegated sovereignty of Almighty Allah is vested with plenary powers to frame a Constitution to achieve the goal, object and the basic ideology of Pakistan. If, however, the Constituent Assembly fail to fulfil its obligations, the remedy will be the resistance to be offered by the people to accept the Constitution and the complexity of the problem so arising will be settled on the political forum in the country and not before the Courts. I, therefore, hold that the Interim Constitution framed by the Constituent Assembly remains supreme not subject to judicial scrutiny as an ordinary Act of the legislature in the sub- constitutional field. Viewed thus the premises for both set of arguments that some provision in the Interim Constitution offend against the grund norm or the Legal Framework Order (an invalid document not legitimised by the Supreme Court) disappears. The terse observations of Marshall, J.
115. In Marbury v. Madison (1) are in point.
116. 111 ' The Constitution is either a superior, paramount law, unchangeable (I) (1803) I Cranch 137 by ordinary means, it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall pleas to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latte part be true, then written Constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."
117. ' For the same reason the Preamble and the Principles of Policy have been rightly described by 'he Attorney-General as basic ideology not actionable before the superior Courts. Article 28 of the Interim Constitution, which is akin to Article 8 of the 1962 Constitution, refers. The same view has been expressed in Labour Federation of Pakistan and others v. Pakistan and another (supra) and The Punjab Province v. Malik Khizar Hayat Khan Tiwana (supra).
118. ' Coming to the question what a Constitution should or should not contain, it will not be out of place to mention that the word 'Constitution', according to constitutional lawyers, is used in two senses.
119. First of all it is used to describe the whole system of Government of a country, the collection of rules which establish and regulate or govern the Government. These rules are partly legal and partly non-legal or extra-legal taking the form of usages, understandings, customs, or conventions. In the narrower sense the word 'Constitution' is used to describe not the whole collection of rules, legal and non-legal, but rather a selection of them which had usually been embodied in one document or in a few closely related documents. "A Constitution is sometimes defined as the fundamental law of a State, containing the principles upon which the Government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised. Perhaps an equally complete and accurate definition would be, that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised" (Coo!Ey's Constitutional Limitations, Volume I, Eighth Edition).
120. ' K. C. Where has expressed the following views on the subject at pages 50 and 51 of his 'Modern Constitutions' (1967 re-print) :- "But while a preamble is right and proper, it is worth remarking that a Constitution is, first of all, a legal document. It is intended to state supreme rules of law. It should confine itself, therefore, as completely as possible to stating rules of law, not opinions, aspirations, directives, and policies.
121. Moreover, if it is to state rules of law and if, in particular, those rules are to constitute supreme law, binding the legislature equally with the executive and judiciary-and this is the avowed intention of most Constitutions, as we have seen-then these rules should be few, they should be general, and they should be fundamental. They should relate to subjects which it is fitting and proper to attempt to describe and regulate in terms of a rule of law. Finally, the language employed, though inevitably general and wide in some matters, should at the same time avoid so far as possible the ambiguous, the emotional, and the tendentious."
122. "If it is desired that a Constitution should evoke not only the respect due to law but also the added- reverence due to a supreme law, then surely it is wise to exclude from its confines, as completely as possible, anything that is not intended to be regarded as a rule of law. This, at any rate, is the way in which a Constitution is viewed by those brought up and trained in what may be called the English view of constitutional law. But not all writers on Constitutions would accept this view. For many people a Constitution is something more than a selection of supreme legal rules. It is often, and sometimes first, a political manifesto or creed or testament. As such, it can be argued, it evokes the respect and affection and, indeed, obedience of the people in a way which no exclusively legal document can hope to do. . .
123. ' Keeping in view the definition of the word 'Constitution' given by Cooley and the fact that no hard and fast rules have been laid down as to what a Constitution should or should not contain, the criticism that Articles 280 and 281 of the Interim Constitution are in the nature of an Indemnity Act and should not have formed Part of the Constitutional document is without merit. The Supreme Court has held in Asma Jilani's case that the period from the 25th of March, 1969, onwards has been the reign of the usurper and all Proclamations, Martial Law Regulations and Martial Law Orders pronounced or promulgated by the usurper were invalid ab initio and in order to avoid chaos in the country some of them have to be saved and continued on the doctrine of necessity.
124. Such an exercise before the superior Courts would have entailed a good deal of time and energy and if in order to overcome that difficulty and to fill the vacuum the Constituent Assembly has removed the defect attached to the Martial Law Regulations and Martial Law Orders by validating them with retrospective effect, it cannot be urged with success that the Constituent Assembly has in any manner transgressed its powers; rather by placing these provisions in the Interim Constitution, the Constituent Assembly has provided methodology for continuity of the Constitutional institutions in the country and the same cannot be considered to be unconstitutional. I am fortified in this view by the observations in The Punjab Province v. Malik Khizar Hayat Khan Tiwana (supra) and Abdul Aziz v. Province of West Pakistan (supra). The opinion (reproduced above) expressed by Wheare is also to the same effect.
125. ' An argument has been advanced by the petitioners' counsel that Article 281 of the Interim Constitution is in the nature of a Bill of Attainder and could not have been validly included in the Constitutional document. Reference was made to Fundamental Right No, 4 of 1962 Constitution, which is Article 11 of the Interim Constitution (reproduced earlier) pertaining to protection against retrospective punishment. For comparative study the analogous provision of U. S. A's. Constitution, section 9(3), which reads 'No bill of attainder or ex post facto law shall be passed' was pressed into service. In Phillips v. Eyre (1) Whilles, J. Dealing with the subject of ex post facto laws referred to the American case of Calder v. Bull (2), and expressed himself as under :- "The retrospective Attainder Acts cf earlier times, when the principles of law were not so well understood or so closely regarded as in the present day, and which are now looked upon as barbarous and loosely spoken of as ex post facto laws, were of a substantially different character.
126. They did not confirm irregular acts, but voided -1)(1870)LR 6 QB 1 (2) 3 Dallas 386 and punished what had been lawful when done. Mr. Justice Blackstone (I Bla. Com. 46) describes laws ex post facto of this objectionable class as those by which 'after an action indifferent in itself is committed, the legislative then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law ; he had "therefore" no cause to abstain from it, and all punishment for not abstaining must of consequence be cruel and unjust."
127. ' The ex post facto laws, as observed in the quotation above, did not confirm irregular acts, but voided and punished what had been lawful when done. In the case before us. The act when committed was not innocent under the law (subsequently declared invalid) and, therefore, validation of the invalid law has not made criminal which was innocent when done. The argument fails on this short ground and is repelled.
128. ' The pivotal point argued in all these cases is in respect of the extent of immunity or indemnification provided by Article 281 read with Articles 280 and 295 of the Interim Constitution to not only Proclamations, Martial Law Regulations. Martial Law Orders and Presidential Orders but also to proceedings and actions taken and orders made in pursuance of the said Proclamations, Martial Law Regulations and Martial Law Orders, etc. To appreciate the arguments it is necessary to consider the rules of interpretation of a Constitution, which is the fundamental law of a State and is a solemn and sacred document of seminal and supreme consequence. It was held in United States v. Classic (1) that the Constitution is not to be read as a legislative code subject to continuous revision with the changing course of events but rather as a revelation of the great purposes which were intended to be achieved by it as a continuing instrument of Government. Mr. Justice Shahab- ud-Din (as he then was) expressed himself in Muhammad Nur Hussain v. Province of East Pakistan
(2) on the question of interpretation of a provision of the Constitution as under :- "It is well-recognized that in interpreting a provision of a Constitution the widest construction possible in its context should be given according to the ordinary meaning of the words used, and that each general word should be held to extend to all ancillary and subsidiary matters."
129. ' In James v. Commonwealth of Australia (3) their Lordships of the Judicial Committee observed that 'a Constitution is not to be construed in any narrow and pedentic sense'. Munir, C. J. Has recounted the main principles )f construction of a Constitution in President's Special Reference No, 1 of [957 reported as PLD 1957 SC 219, which may be reproduced with advantage "One general rule that emerges, and it is ancient rule, from discussions on the subject is that in the interpretation of written instruments, whether they are constitutional characters or ordinary statute;, or other documents, the first object of the Court is to discover the intention of the author and that such intention is to be gathered from the words used in the statute or document.
(1) (1941) 313 U S 299 (2) PLD 1959 SC 470 (3) (1936) A C 578 ' The second rule is that intention of the legislature in enacting a statute ought to be derived from a consideration of the whole enactment in order to arrive at a -consistent plan. It is wrong to start with some a priori idea of that intention and to try by construction to wedge it into the words of the statute.
130. ' The third rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. (R. v. Arnold (1864) 5-B & S. 322).
131. ' And the fourth rule is that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the. Statute to which it may properly apply. Per Romiily. M. R. In Pretty v, Solly (1859) 26 Beay. 606 at 610.
132. ' These rules are equally applicable to the interpretation of Constitutions, although because of their permanence and the need to apply them to the changing conditions of the society for which they were meant, Constitutions are subject, in their interpretation, to certain modifications of these doctrines. The duty imposed upon the judiciary, however, of discovering the intention of the framers of the Constitution and the true meanings of the constitutional instrument is equally imperative, and the fundamental principle of constitutional construction has always been to give effect to the intent of framers of the organic law and of the people adopting it. As has been aptly observed by an Ohio Judge in H. M. Co. v. Miller (92) Ohio St. 115, the pole-star in the construction of a Constitution is the intention of its maker and adopters.
133. ' Another elementary rule of construction of constitutional instruments is that effect should be given to every part and every word of the Constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. ( 11 Am. Jur., Constitutional Law, Art. 55).
134. ' The next rule in construing a constitutional provision is that it is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode of ascertaining the meaning affixed with any word or sentence by a deliberative body is by comparing it with the words and sentences with which it stands connected, and a constitutional provision or a phrase in a constitutional provision must be read in connection with the context. Noscilur a Sociis is the rule of construction applied to all written instruments. Therefore, particular phrases of a Constitution must be cons- :ued with regard to the remainder of the instrument and to press intent of the constitutional convention in adopting it ( Am. Jur., Constitutional Law, Art. 53).
135. ' And the last rule which needs statement for the purposes of this case is that if there be any apparent repugnancy between different provisions. The Court should harmonize them if possible.
136. The rules of construction of constitutional law require that two sections be so construed, if possible, as not to create a repugnancy, but that both be allowed to stand, and that effect be given to each.
137. Cases may, however, arise where it is impossible to harmonize or reconcile portions of a Constitution. In such a case, if there is a conflict between a general and a special provision, the special provision must prevail in respect of its subject-matter, as it will be regarded as limitation on the general grant (Am. Jur., Constitutional Law, Art. 53)."
138. ' In Fazlul Quader Chowdhry v. Muhammad Abdul Haque (supra) was observed :- "The fundamental principle underlying a written Constitution is that it not only specifies the persons or authorities in whom the sovereign powers of the State are to be vested but also lays down fundamental rules for the selection or appointment of such persons or authorities and above all fixes the limits of the exercise of those powers. Thus, the written Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere. No power can, therefore, be claimed by any functionary which is not to be found within the four corners of the Constitution nor can anyone transgress the limits therein specified."
139. ' Higgins, J., said in A. G. v. Brewery Employees' Union (6 C L R 469) : "Although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary jaw, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be."
140. ' While dealing with the extent of indemnification under Article 281 it will be helpful to explore the nature of an Indemnity Act. Dicey has expressed himself at pages 412 and 413 in an introduction to the study of the `Law of the Constitution (10th Edition)' as follows :- "There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the Government must then take is clear. The Ministry must break the law and trust for protection to an Act of Indemnity."
141. ' One would normally expect that such an Act of indemnity would inden ray only acts bona fide directed to the suppression of the disorder but Acts of indemnity may be drafted widely and narrowly and their effect will depend on the wording in each case. This subject has been of considerable debate and tracing it back to the Indemnity Acts passed by the British Parliament to deal with riots in Ireland and for the Military Commanders in the Colonies in the British Empire in olden days, Dicey's remarks at pages 236 and 237 are as under :- "As regards, again, the protection to be derived from the Act by men who have been guilty of irregular, illegal, oppressive, or cruel conduct, everything depends on the terms of the Act of Indemnity. These may be either narrow or wide. The Indemnity Act, for instance of 1801, gives a very limited amount of protection to official wrongdoers. It provides, indeed, a defence against actions or prosecutions in respect of anything done, commanded, ordered, directed, or advised to be done in Great Britain for apprehending, imprisoning, or detaining in custody any person charged with high treason or treasonable practices. And no doubt such a defence would cover any irregularity or merely formal breach of the law, but there certainly could be imagined acts of spite or extortion, done under cover of the Suspension Act, which would expose the offender to actions or prosecutions, and could not be justified under the terms of the Indemnity Act. Reckless cruelty to a political prisoner, or still more certainly, the arbitrary punishment or the execution of a political prisoner. Between 1793 and 1801, would, in spite of the Indemnity Act, have left every man concerned in the crime liable to suffer punishment. Whoever wishes to appreciate the moderate character of an ordinary Act of Indemnity passed by the Imperial Parliament, should compare such an Act as the Act of Indemnity, 1801, with the enactment whereby the Jamaica House of Assembly attempted to cover Governor Eyre from all liability for unlawful deeds done in suppressing rebellion during 1865. An Act of Indemnity again, though it is the legislation of illegality, is also, it should be noted, itself a law (underlining* is mine). It is something in its essential character, therefore, very different from the proclamation of martial law, the establishment of a state of seige, or any other proceeding by which the executive Government at its own will suspends the law of the land. It is no doubt an exercise of arbitrary sovereign power ; but where the legal sovereign is a Parliamentary assembly, even acts or state assume the form of regular Jegislation, and this fact of itself maintains in no small degree the real no less than the apparent supremacy of law."
142. ' The general importance of the question how far will an Act of indemnity passed after civil commotion protect the authorities concerned in respect of all acts done by them in the course of suppressing the disturbances also needs examination. In the earliest case, Wright v. Fitzgerald (27 Howell's State Trials 759), the action brought by Wright in respect of the public flogging upon him by Fitzgerald, the High Sheriff, the jury returned a verdict in plaintiff's favour awarding him 500 damages. It was held that "an Act of Indemnity is no defence where the conduct sought to be justified was not bona fide directed to the suppression of the insurrection". Fitzgerald made an application to the Court of Exchequer to have the verdict set aside. This was refused with costs. In the meanwhile Fitzgerald petitioned the Irish House of Commons for indemnification in respect of his acts. The Government then introduced a new and more stringent Indemnity Bill, to amend and explain the earlier Act (38 Geo.
3. c. 74). One Matthew Scott, a merchant of Carrickon-Suir, who had an action pending against Fitzgerald, petitioned the House of Commons not to pass the Indemnity Bill as it might operate to deprive him of his vested rights. The Bill having become law, Mathew Scott's actit'n failed. Later Fitzgerald received for his exertions the reward of a baronetcy. Against Fitzgerald, despite the Indemnity Act, two more actions were brought. In Wells v. Fitzgerald the plaintiff remained unsuccessful in his action in respect of a flogging inflicted on him by Fitzgerald in view of the Indemnity Act. In Doyle v. Fitzgerald, the defendant openly avowed the illegality of his acts, played upon the prejudices of the jury, and claimed the protection of the (Here in italics)
143. Indemnity Acts. The jury returned a verdict in favour of the defendant. Lord Avonmore's charge to the jury brought out the point that the interpretation and effect of any Ihdemnity Act must depend upon its own particular terms. An example is traceable in the Indemnity Act ( passed following the suppression of disturbances by the Governor of Eyre in Jamaica in 1865) which indemnified the authorities in respect of acts done under the instructions of the Governor or in order to suppress rebellion.
144. From the above, the legal position that emerges that the Constituent Assembly or the Legislature can pass such Indemnity Acts as would grant complete immunity for all acts done in the course of a civil commotion. Viewed from this angle also, no objection can be taken to the enactment of Articles 280 and 281.
145. ' Having dealt with the various objections to the enactment of Article 280 and 281, I advert (keeping in view the principles of interpretation reproduced earlier) to the construction put on these two Articles by learned counsel appearing for the petitioners. The scheme of these sections is clear enough and the analysis thereof given both by counsel for the petitioners and the learned Attorney-General need not be repeated. Under Article 281(1) all Proclamations, President's Orders, Martial Law Regulations and Martial Law Orders and all other laws made as from the 25th of March, 1969 have been declared to have been validly made by the competent authority, notwithstanding any judgment of any Court, and are not to be called in question in any Court. As already observed above, an Indemnity Act may be drafted widely or narrowly as the Constituent Assembly has in its wisdom retrospectively validated all the invalid laws made as from the 25th of March, 1969 onwards, including the Proclamation of the 25th of A/larch, 1969, itself, the immunity under sub- Article (1) is absolute. After having validated all these Proclamations, President's Orders, Martial Law Regulations and Martial Law Orders, the Proclamation of the 25th of March, 1969 has been revoked under sub-Article (2) of Article 280. By virtue of the same sub-Article, Orders specified in the Sixth Schedule and Orders amending those Orders stand repealed as fro the commencing day. Under sub Article (3), Martial Law Regulations and Martial Law Orders detailed in the Seventh Schedule have been continued a laws of the appropriate legislature as from the commencing day. In other words, after having validated these invalid laws, some of them have been repealed and others have been allowed to continue. In case of repeal, the provisions of Article 295 can be pressed into service while all future acts under the Martial Law Regulations or Martial Law Orders, which have been continued as Acts of the appropriate legislature, will be subject to judicial review in accordance with the provisions of the Constitution. Sub-Article (2) of Article 281 deals with orders made, proceedings taken and acts done by any authority or by any person, which are made, taken, or done or purported to have been made, taken or done on or after the 250 day of March, 1969, in exercise of powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, Orders or bye-laws or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid shall be deemed to be and always to have been validly made, taken or done. With reference to this sub-Article the learned Attorney-General as also the Advocate-General have contended that immunity for acts under the validated laws, whether repealed or continued, is again absolute.
146. Reliance has been placed on the words and phrases used in the sub-Article, namely, 'purported' and 'deemed' as also 'to be and 'always to have been done'. The case-law on the subject referred leads to the conclusion that although the effect of the deeming clause is very wide and where a statute say that you must imagine state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle, when it comes to the inevitable corollaries of that state of affairs, yet the Court is entitled and bound to ascertain the limits within which and the purpose for which the legislature has created the nction. Commissioner of Income-tax Bombay Presidency v. Bombay Trust Corporation, Ltd. (supra), East And Dwelling Company Ltd. v. Finsbury Borough Council (1) and In re: Levy Ex parte Walton (2 refer. The purpose of the Constituent Assembly in enacting Article 281 is very clear. They were validating the invalid laws to provide lega continuity in the country, and with that end in view they have not only given protection to persons who would have otherwise been expassed to legal action for acts done by them under invalid laws by enacted sub Article (3), they have in their wisdom also indemnified actions taken or orders made or purported to have been taken or done, under these invalid laws. After having ascertained the purpose for which the Constituent Assembly has created the legal fiction, I proceed to consider the effect of the word "purported", ---- which has not been defined in the Constitution or the General Clauses Act. Its ordinary dictionary meaning has already been reproduced earlier and the case-law referred on behalf of the Central and Provincial Governments has also been noticed. The question that falls for consideration is whether in view of the authority o the point, jurisdiction of the Court has been ousted by the use of this word in sub-Article (2) itself. Ordinarily where a provision equates act `done' with acts 'purported to have been done', the provision does render the purported exercise of power immune from challenge before Courts of law. However, the word "authority" appearing in sub-Article (2) is not without significance. The orders made by any 'authority' or by any `person', which were made or purported to have been made in exercise of the powers derived from any of the validated laws or in execution of any orders made by any 'authority' in the exercise or purported exercise of powers as aforesaid are to be deemed 'to be' and 'always to have been' validly made. Put differently protection has been afforded to orders made by any 'authority' or by any 'person' (which term will be read analogous to the immediately preceding term 'authority') which were mad or pu ported to have been made in exercise of the powers derived from the validated laws, or in execution of any orders made by any 'authority' in the exercise or purported exercise of powers as aforesaid. It is thus clear that the exercise of powers under the validated laws ha to be by an 'authority' or a person so constituted under the particular validated law and not otherwise, which terminology clearly indicates the cases of coram non word are not within the purview of this sub-Article, despite use of the word 'purported'. The learned Advocate- General during the course of his address, as a matter of fact, conceded that if an order or action of a person. Who patently had no jurisdiction in the matter, is impugned before this Court, he would not sustain such an action under sub-Article (2) of Article 281.
(1) 1952 A C 109 (2) 17 Cb, D 756 ' The phrase "to be" appearing in sub-Article (2) of Article 281 has been rightly interpreted by the learned Attorney-General as one of futurity on the basis of the definition given in 'Stroud's Judicial Dictionary, Volume IV, page 3038 (Third Edition). No authority to the contrary has been cited by learned counsel for the petitioners. Again, the phrase "always to have been" construed, and rightly so, for the past. The re,ult is that the legal fiction created by the word "deemed" will be available both for the past and in future.
147. ' On this view of the matter I hold that the immunity clause, namely, Article 281 (2), does not cover cases of coram non judice.
148. ' Taking up the question of malice, suffice it to say that although the learned Attorney-General has vehemently contended that malicious acts too will be covered by sub-Article (2), I am not persuaded to agree. There is chain of authority for the view that a mala fide or colourable action is not an action in accordance with law and as such will be open to judicial review. Again, since in habeas corpus petitions, this Court has to satisfy itself as to the reasonableness of the action taken, malice in fact or in law has to be considered for determining 'lawful authority' of the impugned orders.
149. ' Sub-Article (3) of Article 281 pertaining to indemnity of authorities and persons is not in dispute and I am not called upon to discuss it in any greater detail.
150. ' After having come to the conclusion that sub-Article (2) will not cover cases of coram non judice and malice, I proceed to examihe the cases of Muhammad Mukhtar Rana and Muhammad Riaz Shahid (Writ Petitions 223 and 335 of 1972). Learned counsel appearing for them has not been able to show how the orders passed by the Special Military Court in the murders case are coram non judice. On the question of malice, however, he referred to the subsequent invocation of Martial Law Regulation No, 16(a) against the petitioners by the investigating agency and transfer of the case to the Special Military Court.
151. ' The question of validity or otherwise of invocation of Martial Law Regulation No, 16(a) at a late stage or transfer of the case to the Special Military Court pertains to merits and cannot be successfully pressed in writ jurisdiction.
152. ' In Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (supra), it has been observed. Is no-. To be turned into a roving enquiry permitting the detenu to hunt some ground to support his case of mala fide nor should an enquiry be launched upon merely on the basis of vague and indefinite allegations. ,Mala fide must be pleaded with particularity and once one kind of mala fide is alleged, the should not be allowed to adduce proof of any other kind of mala fide."
153. ' Since there are no specific allegations as to mala fide, the plea of mala fide must fail on this short ground. Mian Iftikhar-ud-Din and another v. Muhammad Sarfraz (supra), is in point.
154. ' To another argument of Mr. Zafar that because the learned Advocate-General had given an undertaking before the Supreme Court that in the meanwhile final orders will not be pronounced by the Military Court, the Special Military Court could not have recorded a finding and forwarded the case for confirmation and, therefore, it would be still considered to be a pending case to be tried by the criminal Court, the decision in Muhammad Akram Khan v. Islamic Republic of Pakistan (supra), is a complete answer, because without promulgation there could have been no final orders by the Special Military Court and the undertaking given by the learned Advocate-General viewed from that angle has not in any manner been disregarded. The case is pending confirmation and is to be dealt with under para. (4) of President's Order No, 14 of 1972, and, therefore, no question of its being placed before an ordinary Criminal Court after the commencing day as pending will arise.
155. ' Taking up the other case, forming subject-matter of Writ Petition No, 625 of 1972, against Muhammad Mukhtar Rana, in which he has already been convicted and sentenced the impugned orders have not been shown to be coram non judice. The allegation of mala fide in law is neither specific nor has it been substantiated by any material on the record and, therefore, the same cannot be successfully canvassed.
156. ' During the course of preparation of this judgment, the detenus in the two Writ Petitions (Nos. 403 and 404 of 1972), namely, the Urdu Digest case, the Zindagi case and the Punjab Punch case, have been released by the Government and the petitions for habeas corpus have, therefore, become infructuous. However, as considerable time has been expanded in hearing these petitions in which very important questions of constitutional law have been raised, which may have arisen in a large number of other writ petitions, I have considered it appropriate to deliver judgment in these cases also. As all the legal and constitutional questions raised have been answered against the petitioners and the impugned orders are not established to be cases of coram non judice, they cannot succeed. Since the detenus have been released, I am not called upon to examine in detail the argument based on malice in their cases.
157. ' Before I part with the case, I must place on record deep appreciation of the assistance rendered by learned counsel appearing for the parties.
158. ' For the reasons above, Writ Petitions Nos. 403 and 404 of 1972 are declared to have become infructuous and are dismissed as such. Writ Petitions Nos. 223 and 625 of 1972 by Muhammad Mukhtar Rana and Writ Petition No, 335 of 1972 by Muhammad Riaz Shahid also stand dismissed.
159. ' In view of the complexity of legal questions raised, the parties are left to bear their own costs.
160. ' MUHAMMAD AFZ L CHEEMA, J.-Writ Petitions Nos. 223, 625 and 627 of 1972 filed by Muhammad Mukhtar Rana, Writ Petition No, 335/72 filed by M Riaz Shahid a co-accused of Muhammad Mukhtar Rana in a murder case, Writ Petition No, 403/72 filed by Mr. Zia-ur-Rehman, Writ Petitions Nos. 404 and 198 of 1972 filed by Mrs. Shamim Kadir, are connected matters involving identical points of law whose determination hinges by and large on the correct interpretation of the validating provisions of the Interim Constitution vis-a-vis Supreme Court Judgment in Asima Jilani's case.
2. The circumstances giving rise to the writ petitions filed by Muhanunad Mukhtar Rana briefly are that he was a member of the Pakistan People's Party and successfully contested elections to the National Assembly during the last General Elections from Constituency No, NW. 49-Lyallpur (I) on the ticket of his party the P.P.P. On 3-2-1972 one Mian Abdul Khaliq Proprietor National Hosiery Mills Lyallpur was injured at the hands of some workers of his Mill and later died in the hospital. A case under section 307/148, P. P. C. Was registered on the report of Mr. Abdur Rahim his cousin and partner wherein eight persons were named as assailants. On the death of Mian Abdul Khaliq the offence was altered to one under section 302/149 P. P. C. On 14-2-1972 a news item appeared in the Press regarding issuance of warrants for the arrest of Muhammad Mukhtar Rana petitioner in connection with the above murder case. On 17-2-1972 he filed Cr. Misc. No, 330,B/72 in the High Court for anticipatory bail. Interim bail was allowed to him by me. Subsequently Martial Law Regulation No, 16 (a) was also added by the police as one of the offences alleged against him. On 19-2-1972 while the case was still pending investigation Martial Law Administrator Zone 'C' constituted a Special Military Court for the trial of the case. On 24-2-1972 the matter was referred to the Full Bench of three Judges consisting of myself, Ata Ullah Sajjad and M. A. Zullah, JJ. Which extended the bail with notice to the Attorney-General for the 13th March, 1972. In the meantime complete challan was submitted by the pclice before the Special Military Court which fixed the case for the 9th March, 1972, whereupon Mr. Muhammad Mukhtar Rana moved Writ Petition No, 223/1972 under Article 98 of the 1962 Constitution for the issuance of a writ of certiorari with a prayer that the constitution of the Special Military Court be declared as without lawful authority and of no legal effect. It was further prayed that the proceedings before the Special Military Court may also be stayed till the disposal of the writ petition. This writ petition was also listed before the Full Bench consisting of myself, Ata Ullah Sajjad and M. A. Zullah, JJ. Having heard the learned counsel for the petitioner, the t ull Bench vide its order, dated 9-2-972 admitted the writ petition to a regular hearing and also stayed proceedings before the Special Military Court till 13th of March, 1972. In addition to this, the constitution of a much larger Bench was recommended to deal with the matter which involved fundamental constitutional issues of far-reaching implications.
161. ' Accepting the recommendations our Lord the Chief Justice constituted a larger Bench consisting of five Judges adding A. R. Shaikh., the senior most member of the Full Bench and Dr. N. H. Shah, J.
162. Proceeded abroad and was substituted by Mr. K. E. Chauhan, J. In the meantime, however, the Government moved two petitions for special leave to appeal in the Supreme Court against the bail order dated 6-3-1972 passed in Cr. Misc. No, 330 B/72 and the stay order dated 9-3-1972 passed in Writ Petition No, 223/72 whereby proceedings before the Special Military Court were stayed. The Supreme Court suspended both the orders. Prcceedings were allowed to continue before the Special Military Court but the announcement of final order was stayed on an undertaking by the learned Advocate-General. The Full Bench to which similar other matters were referred including Writ Petition No, 335/72 filed by M. Riaz Shahid a co-accused of Muhammad Mukhtar Rana in the murder case on the same grounds, considered it expedient to wait till the announcement of the Supreme Court judgment in Miss Asima Jilani's case and the cases were adjourned. In the meantime on 24-3-1972 when Muhammad Mukhtar Rana was on his way back from the High Court after Court attendance he was arrested by the police under Martial Law Regulations 16-A and 89 in another case, on the allegations that on 14-3-1972 he had made certain objectionable speeches.
163. He was hurriedly tried by the Special Military Court which on conviction awarded him a sentence of 5 years' R.
1. On 10.4-1972 which has been challenged through Vvrit Petition No, 625/72. In consequence of his conviction, the Chief Election Commissioner exercising powers vesting in him under Article 9 (2) (c) of the Legal Framework Order read with Articles 295 (b) and (d) of the Interim Constitution declared vacant his seat No, NW. 49-Lyallpur (I) and ordered fresh elections to be held on 31-5- 1972. This notification was challenged through Writ Petition No, 627/72 by Muhammad Mukhtar Rana in which a declaration was sought to the effect that the petitioner continued to be the lawfully elected member from that Constituency. The petition was admitted, but the fresh elections were not stayed which were held according to the schedule and was unsuccessfully contested by the sister of the petitioner against the nominee of the Pakistan Peoples Party. Arguments have not been heard in this case.
3. Writ Petition No, 403/72 was filed by Mr. Zia-ur-Rehman petitioner Advertisement Manager of the two Magazines monthly 'Urdu Digest' and weekly `Zindgi- in the nature of habeas corpus challenging ihe detention of Mr. Ejaz Hussain Qureshi Publisher of the aforesaid periodicals, of his brother Mr. Altaf Hussain Qureshi Editor of 'Urdu Digest' and of Mr. Mujib-ur-Rehman Shami Editor of 'Zindgi'. Under Mariial Law Regylations Nos. 16-a and 89 for having published some objectionable articles.
4. According to the petitioners the two Qureshi brothers were arrested on 5-4-1972 while Mr. M. R.
164. Shami on the next day i. e. 6-4-1972, and on the same day all the three were produced before a Major in the Peoples' and were remanded to police custody till 10-4-1972 when they were again produced and charge-sheets were delivered to them. On 11.4-1972 the case of `Urdu Digest' was taken up by the Summary Military Court against the two brothers. In all, three witnesses (of whom two were police officers, an Inspector of Police, a Deputy Superintendent of Police and a Clerk), were examined. The accused submitted their written statements objecting to the jurisdiction of the Court and the case was adjourned to 14th April, 1972. In the `Zindgi' case against Mr. M. R. Shami and Ejaz Hussain'. Qureshi the former submitted a statement in writing on 10-4-1972 challenging the competence and the jurisdiction of the Summary Military Court. The case was then adjourned to 15th April, 1972. It was alleged that contrary to the earlier schedule hearing was suddenly accelerated in both the cases which were taken up on the 13th April, 1972 and at 2-30 p. m. The same day the accused were convicted. Ejaz Hussain Qureshi was awarded a sentence of two years'
165. R. I. On two counts under Martial Law Regulation Nos. 16(a) and 89 and a fine of Rupees one lac on each of the two counts. Altaf Hussain Qureshi was awarded a sentence of one year R. I. And a fine of Rs one lac on eaach of the two counts. Similarly Mr. M. R. Shami was sentenced to one year R. I.
166. And a fine of Rs, one lac. It would be pertinent to mention that the writ petitions came up before the Full Bench on 10-4-1972 and were admitted by the Full Bench when notice was accepted by the Advocate-General in the stay matter for the 12th April, 1972. On a suggestion by him notice was also issued to the learned Attorney-General, for the aforesaid date. In the meantime the Full Bench on the petition for interim relief made an order expressing Hope and Desire that the Special Military Court would not pass the final order till 12th April, 1972. On 12-4-972 Maulvi Ehsanul Haq standing Counsel for the Central Government appeared before the Full Bench and requested on behalf of the Attorney-General for adjournment of tne case till sometime after the 18th April, 1972 as he was busy before the Inquiry Commission. Accordingly the case was adjourned to the 20tn April, 1972 and in the meantime of the Hope and Desire order was continued. Notwithstanding this, however, the convictions were recorded in both the cases by the Summary Military Court on 13-4-1972 by accelerating the dates. Subsequent to their convictions on 15-4-1972 Cr. Original No, 65/W/72 was filed by Mr. Zia-ur-Rehman for initiation of contempt proceedings against Major Mr. Khalid Mahmood, President of the Summary Miliiary Court who was examined by us in Court.
5. Writ Petition No, 404,72 was filed under Article 98 of the 1962 Constitution in the nature of haoeas corpus by Mrs. Shamim Kadir wife of Mr. Muzaffar Kadir a former C. S. P. Officer challenging nis detention as well as of Mr. Hussain Naqi Publisher and Editor of Punjab Punch' on alleged violations of M. L. R. Nos. 16(a) and 89. The relevant facts of the case are that Mr. Muzaffar Kadir was removed from service in April, 1970 being one of the 303 officers sacked by Yahya's regime. He was employed as Manager of the Packall Printing Press by the Proprietor Mehr Sarfraz All in May, 1970. In June Mr. Hussain Naqi a journalist by profession applied for a declaration for the publication of a weekly paper in the name and style of 'Punjab Punch' which was granted to him on 10-2-1971. The declaration was twice cancelled on 1-1-1972 in the first instance and again on its restoration on 21- 2-1972 which was successfully challenged in the High Court by Hussain Naqi in Writ Petition No, 186 of 1972. Mr. Muzaffar Kadir having fallen foul of the Martial Law authorities wrote critical for the Punjab Punch. On 18-3-1972 he filed Writ Petition No, 286 of 1972 in the High Court alleging that he was kept under surveillance and apprehended arrest and detention. On 28-3-1972 the writ petition was converted into one of quo warranto wherein the relief claimed was that the respondents namely, Messrs Zulfiqar Ali Bhutto and Gnulam Mustafa Khar may be directed to justify their incumbency of the offices of Chief Martial Law Administrator and Zonal Administrator respectively.
167. The writ petition was allowed to stand over till the decision of Miss Asma Ji ani's case which was pending before the Supreme Court. On 5-4.1972 order for their arrest was issued by the Zonal Martial Law Administrator under Martial Law Regulations Nos. 16 (a) and 89 with three fold directions namely, (0 registration of the case against them, (ii) their arrest and (iii) trial by a Summary Military Court Section 3. While Mr. Naqi was arrested on 5-4-1972 at 9-30 p. m. From his office and Mr. Muzaffar Kadir was arrested on the following morning i. e. 6-4-1972 at 4-15 a. m. From his office. Consequent upon their arrest the writ petition was filed on 7-4-1972 in the nature of habeas corpus which came up before the Full Bench on 10-4-1972 and was admitted to a regular hearing. As regards the prayer for interim relief again a 'Hope and Desire order' similar to the one made in Writ Petition No, 403/72 was passed in this case as well and the case was adjourned to the 12th and then to the 20th April, 1972. In the meantime charge-sheet was handed over to the detenus and they were convicted on 13-4-1972 as stated earlier. On 14-4-1972 Mrs. Shamim Kadir filed two petitions bearing Nos. Criminal Original 52 of 1972 for initiation of contempt of Court proceedings against the President of the Summary 'Military. Court and Criminal Miscellaneous No, 190/H/1972 for. The production of the detenus and the suspension of their sentences passed by the Summary Military Court. Both these cations came up on 17-4-1972 when rigorous part of the sentences of imprisonment and the recovery of the fine were suspended by the Full Bench by a majority order. This order was also challenged before the Supreme Court, when their Lordships suspended the same in anticipation of the forthcoming Interim Constitution vide order dated 19-4- 1972.
6. Although the superior Courts of the country had consistently conceded the ouster of their jurisdiction in regard to the cases referred to the Military Courts and as such in view of this more or less settled position prima facie one would see no justification for the admission of these writ petitions, yet it was abundantly clear from the admitting order of the Supreme Court dated 15-1- 1972 passed in Miss Asima Jilani's case wherein tl e very basis of assumption of power by General A.
168. M. Yahya Khan and the subsequent martial law jurisdiction was brought under challenge that their Lordships proposed to consider the fundamental question of the con,titutional validity of martial law deriving legal support from the Supreme Court judgment in State v. Dosso (1) which on previous occasions too had been half heartedly sought to be reviewed. It was on the basis of this admitting order which formed the sheet anchor of the petitioners in all the cases referred to the Full Bench that the writ petitions were primarily admitted, It would not be out of place to reproduce some of the points referred to the Full Bench in a couple of these cases. The points for reference in Criminal Miscellaneous No, 330-B of 1972 bail application filed by Mr. Muhammad Mukhtar Rana were as follows :-
(i) Whether in the circumstances of this case invocation of Martial Law Regulation No, 16(a) against the petitioner by the Investigation Agency would be justified ?
(ii) Whether this Court has the jurisdiction to go into the validity or otherwise of the invocation of the Martial Law Regulation No, 16(a) by the Investigating Agency ?
(iii) Whether in view of the invocation of Martial Law Regulation No, 16(a) by the Investigating Agency, coupled with the Martial Law Administrator's decision that the case shall be tried by a Special Military Court, this Court has ceased to have jurisdiction to dispose of this pending bail application?
(iv) What is the effect of the Supreme Court's admitting order, dated the 25th of January, 1972, passed in Miss Asima Jilani's case on the present petition?
169. ' In Writ Petition No, 223 of 1972 filed by Mr. Muhammad Mukhtar Rana challenging the proceedings before the Special Military Court the following points were referred to the Full Bench :-
(i) Whether this Court has jurisdiction to go into the validity of the constitution of Special Military Court in question ?
(ii) If so, whether it is validly constituted and is competent to try the case ?
7. Since the other connected matters also involved the determination of identical questions depending mostly on the judgment of the Supreme Court in Miss Asirna Jilani's case, now published as Miss Asima Mani v,
(1) PLD 1958 SC 533 Government of the Punjab (1), in order to avoid futile duplicity of exercise it was considered appropriate and expedient by the Full Bench to defer the hearing of these cases till the pronouncement of the judgment by the Supreme Court wherein arguments were already in progress and in fact had mostly concluded.
8. The judgment of the Supreme Court which shall be a landmark in the judicial history of Pakistan was announced on 20-4-1972. Their Lordships overruled the earlier judgment in Dosso's case which had held the field for about 14 years and restated the law on the point after a most elaborate and arudite discussion of the relevant issues. Having tried to delve into it I would catalogue the findings relevant to the instant case as follows :-
(i) Having considered the political vicissitudes through which the country had to pass and the constitutional battles fought in the Courts in Moulvi Tamizuddin's case (2), Yousaf Patel's case (3), Presidential Reference (4) and. Dosso's case (supra) and the subsequent reaffirmation of the view taken therein in Province of East Pakistan v. Mr. Mehdi Ali Khan Panni (5) and Mian Iftikharuddin Ahmad v. Sarfraz Ahmad Khan (6), Muhammad Afzal v. The Commissioner Lahore Division and others (7) and Mr. Tanvir Ahmad Siddiqi v. Government of East Pakistan (8), their Lordships repelled the arguments regarding the application of rule of stair decisis in constitutional matters placing reliance on several foreign authorities including 1964-2 A E R 705, 1957-2 A E R (P C) 25, 25 Commonwealth Law Report 434.
(ii) Their Lordships then considered the application of the theory of Kelsen and Doctrine of Necessity on whose acceptance and application the ruling in Dosso's case was primarily based, and examined the implications of the first Martial Law proclamation dated 7-10-1938 by Sikandar Mirza abrogating the 1956 Constitution, dismissing the Central and Provincial Governments, dissolving the National and Provincial Assemblies and abolishing all political parties and promulgating Martial Law by the Commander-in-Chief as Chief Martial Law Administrator. The subsequent legislation based on the Continuance (In Force) Order LII of 1958 giving rise to the Dosso's case and the Supreme Court judgment passed therein were also reviewed. Repelling the argument that the judgment in Dosso's case was rigged and motivated owing to the present association of Muhammad Munir the then Chief Justice in the drafting of the Continuance (In Force) Order LII of 1958, their Lordships then critically examined the Kelesonian Theory expressing certain amount of scepticism about its universal acceptance and ultimately came to the conclusion that the doctrine had been misapplied in Dosso's case. The relevant observation of my Lord the Chief Justice of Pakistan may be reproduced with advantage - "Upon this analysis I am, with the utmost respect for the then learned Chief Justice, unable to resist the conclusion that he erred both in interpretting Kelson's theory and applying the same to the facts and circumstances of the case before him. The principle enunciated by
(1) PLD 1972 SC 139 (2) PLD 1955 FC 24
(3) PLD 1955 FC 387 (4) PLD 1955 FC 435
(5) PLD 1959 SC 387 (6) PLD 1961 SC 585
(7) PLD 1963 SC 40! (8) PLD 1968 SC 185 him is, in my humble opinion, wholly unsustainable, and I am duty bound to say that it cannot be treated as good law either on the principle of stair decisis or even otherwise."
(iii) Their Lordships also referred to our grund norm enshrined in the Doctrine of Sovereignty of Allah to be exercised through chosen representatives of the people as trustees within the limits prescribed by the Qur'an and Sunnab.
(iv) Their Lordships then adverted to the assumption of power by General A. M. Yahya Khan on the 25th March, 1969, when Field Marshal Muhammad Ay ub Khan called upon him to preserve the security and integrity of the country and to restore normal social, economic and administrative life.
170. Having scrutinised the proclamation made applicable with retrospective effect from 31-3-1969, and the Provisional Constitution Order dated 4-4-1969, their Lordships questioned the competence of the Commander-in-Chief to promulgate Martial Law and abrogate the Constitution. Having examined different categories of martial law in different circumstances and the nature, scope and extent of martial law authority, their Lordships drew up a clear distinction between martial law as a machinery for maintenance of internal order and the system of military rule over the conquered or invaded alien country. Relying on Tilonko v. Attorney-General of Natal (1), the learned Chief Justice of Pakistan observed- "That the Courts in England have always claimed the right in case of doubt to decide as to whether a state of war or insurrection exists which can justify the imposition of Martial Law."
171. ' Reliance was also placed in this regard on Rex v. Allon (2), Ex parte Marias (3), Wolfe Tone's case
(4) and Ex parte Milligan (5). In all these cases the Courts went into the question as to whether there was a state of war or not and as to whether the military Courts could adjudicate upon the rights of the civilians when the ordinary Courts were functioning. Following observation of the Supreme Court of America made in Taxas v. E. Constantin (6) was reproduced - "If it be assumed that the Governor was entitled to declare a state of insurrection and to bring military force to the aid of civil authority, the proper use of that power in this instance was to maintain the Federal Court in the exercise of its jurisdiction and not to attempt to override it ; to aid in making its process effective and not to nullify it, to remove, and not to create, obstructions to the exercise by the complainants of their rights as judicially declared."
172. ' As a result of this discussion their Lordships came to the conclusion that the proclamation of martial law did not ipso facto involve abrogation of the civil law and did not vest the commander of the armed forces with powers of abrogating fundamental law of the country. It would be advantageous to reproduce the following observation of my Lord the Chief Justice :- "If this be so, then wherefrom did General Agha Muhammad Yahya Khan acquire the right to assume control of the reigns of
(1) 1907 A C 93 (2) (1921) 2 I R 241
(3) 1902 A C 109 (4) (1798) 27 St. Tr. 614
(5) 4 Wallace 121 (6) 77 Lawyers' Edn. 375 Government Field Marshal Muhammad Ayub Khan did not appoint him as his successor by his letter of the 24th March, 1969. He merely called upon him to perform his "constitutional and legal duty to restore order" in the country. If this was his authority, then the only authority he got was to restore order and nothing more.
173. ' Even the imposition of Martial Law by his proclamation is of doubtful validity, because the proclamation should have come from the civil authorities and it was only then that under the proclamation the Commander of the armed forces could have moved into action."
174. ' Referring to the restoration of normalcy and resurrection of the Constitution my Lord the Chief Justice observed :- "Looked at, therefore, either from the constitutional point of view or the Martial Law point of view whatever was done in March, 1969, either by Field Marshal Muhammad Ayub Khan or General Agha Muhammad Yahya Khan was entirely without any legal foundation."
175. ' Their Lordships also referred to Mir Hassan and another v. The State (1) decided by a Full Bench of this Court and approved of the view expressed therein.
(v) Their Lordships then proceeded to consider the constitutionality of the Presidential Order (described as Order 3 of 1969) Jurisdiction of Courts (Removal of Doubts) Order, 1969, whose validity was challenged on the ground that it was repugnant to the Provisional Constitution Order dated 4-4-1969, particularly Articles 3(3) and 4 thereof which had the effect of taking away the juristic power of the Courts to determine their jurisdiction and confer the same on the Martial Law authorities to whose decision absolute finality was attached to the express exclusion of the High Court and the Supreme Court. The argument prevailed before their Lordships that this latter order being sub-constitutional in nature and having been passed as Presidential Order could not alter or amend the Constitution which, in fact, it did, the right having been exclusively reserved by the Chief Martial Law Administrator as specifically provided Article 3(i) of the Provisional Constitution Order.
176. Striking down the order their Lordships held that it cut at the very root of judicial power of the Courts to hear and determine the matter even though it related to their own jurisdiction. This position was frankly conceded before their Lordships by the learned Attorney-General who himself described Presidential Order 3 of 1969 as an absurdity. Their Lordships then examined Regulation No, 78 which conferred arbitrary powers on the Martial Law authorities to detain a person without trial for an unlimited period without disclosing any reason for such detention or giving him an opportunity to be heard.
(vi) Thus, Martial Law introduced by Gen. A. M. Yahya Khan was held to be illegal. His entire legislation including Presidential Order 3 of 1969 was found to be invalid and in excess of the implied authority both on account of illegitimacy of its source as also for the reason of its repugnancy to Right No, 1 guaranteed under Article 2 of the 1962 Constitution. Even otherwise, it was held that the relevant provision
(1) PLD 1969 Lah. 786 contained in paragraph 6(b) ibid did not in terms oust the jurisdiction of the ordinary criminal Courts. Authorities relied upon by the learned Attorney-General for the contrary view namely Muhammad Ismail v. State (I) and Mian Fazal Ahmad and another v. The State (2) were held to be distinguishable and as such not relevant to the case before their Lordships. The argument raised on the basis of the aforesaid authorities that the Supreme Court had given legal recognition to the regime of Gen. A. M. Yahya Khan was repelled by their Lordships.
(vii) Being conscious of the grave responsibility resting upon them to avoid confusion arid chaos, their Lordships then proceeded to consider the consequences of the finding given by them from a pragmatic point of view and conceded to the de facto usurper the exercise of limited power within the framework of the Constitution. Finding it otherwise difficult to legitimize laws which had emanated from an illegitimate source, my Lord the Chief Justice relying on Uganda v.
177. Commissioner of Prisons, Ex parte Matovu (3) and Lamamani Ola v. Attorney-General (West)
178. Nigeria (Unfortunately the full report of this decision is not available but it is referred to in S. A. deSmith's book on Constitutional and Administrative Law), and The Attorney-General of the Republic v. Mustafa Ibrahim and others (4), invoked the principle of necessity. His Lordship described as condonation and not legitimisation of some of the illegal acts of the usurper. All acts and legislative measures which were in accordance with or could have been made under the abrogated Constitution of the previous Legal Order, all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1949, were condoned. The acts intended to entrench the usurper more firm in his power or help him in running the country contrary to its legitimate objectives were excluded specifically from condonation. Likewise anything which seriously impaired the rights of the citizens except in so far as they might be designed to advance the social welfare and national solidarity, were also not condoned. Applying these tests to the President's Order No, 3 of 1969 and Martial Law Regulation 'No, 78 of 1971 his Lordship found them uncondonable.
(viii) As regards the legitimacy of the present regime of Mr. Zulfiqar Ali Bhutto my Lord, the Chief Justice did not give a conclusive finding leaving it more or less an open question as can be spelt out from the following observation :- "It remains now for me only to consider another argument advanced by the learned Attorney- General that the attack is directed really against the present regime and not against regime of General Agha Muhammad Yahya Khan. The learned counsel, on the other side, have all protested that this is not so but in order to leave no room for doubt. I wish to make it clear that this decision is confined to the question in issue before this Court, namely, the validity of the Presidential Order No, 3 of 1969 and Martial Law Regulation No, 78 of 1971 and has nothing whatsoever to do with the validity of the present regime. I am fully conscious of the fact that there were very important differences which may well have a bearing on this question. The circumstances may well have been totally dissimilar. Again, since the preparation of this judgment
(1) PLD 1969 SC 241 (2) 1970 SCMR 650
(3) 1966 E A L 514 (4) 1964 C L R l9c further developments have taken place of which I am entitled to take notice. The National Assembly has met and ratified the assumption of power by the new President who is an elected representative of the people and the leader of the majority party in the National Assembly as now constituted. The Assembly has also, it is said, ratified an Interim Constitution. Its terms are not known to the Court as yet but these developments may well have radically altered the situation.
179. However, since this question is not before this Court I refrain from expressing any definite opinion with regard thereto."
180. ' Ch. Muhammad Yaqub Ali, J., agreed with the views expressed by my Lord the Chief Justice in regard to the illegitimacy of Martial Law legislation. The relevant portion reads as under- "The Martial Law imposed by Yahya Khan was, therefore, in itself illegal and all Martial Law Regulations and Martial Law Orders issued by him were on this simple ground void ab initio and of no legal effect.''
181. ' It was further observed- "All Presidential Orders and Ordinance which were issued by him were, therefore, equally void and of no legal effect."
182. ' However, unlike my Lord the Chief Justice, Muhammad Yaqub Ali, J., expressed a definite opinion about the legitimacy of the present regime and upheld it in unequivocal terms as would be clear from the following observation :- "In reply, Mr. Manzur Qadir acknowledged the legitimacy of the Government headed by Mr. Zulfiqar Ali Bhutto as Chairman of the majority party in the National Assembly and said it was based on the will of the chosen representatives of the people. This was reason behind the plea raised by him that the invalidity in the Legal Framework Order did not affect the legality of the Elections held under it to the National Assembly and Provincial Assembly. This coincided with the position taken up by the Attorney-General that Mr. Zulfiqar Ali Bhutto was not the recipient office of the President as Leader of the majority party in the National Assembly. We also take judicial notice of the fact that after arguments were concluded in these appeals, the National Assembly met and unanimously expressed confidence in the Government of Mr. Zulfiqar Ali Bhutto. An Interim Constitution has also been passed and Mr. Zulfiqar All Bhutto is to be inaugurated as President under this Constitution on the 21st April, 1972. The legitimacy of the present Government is thus beyond the shadow of doubt."
183. ' His Lordship also examined Articles Nos. 280 and 281 of the Interim Constitution which was presumably available to his Lordship before it was given a final shape. Since the principal task with which this Court is confronted in this case is that of the precise interpretation of these provisions of the Interim Constitution, their discussion by my Lord Muhammad Yaqub Ali, J., would be relevant and helpful in the determination of the complicated questions raised before the Full Bench.
184. Referring to the validation of Martial Law Regulation No, i8 and the Presidential Order 3 of 1969, his Lordship observed that - "They are valid, because the new Constitution of the State adopted them as constituents of the National Legal Order as from the commencing day, i,e, 21st April, 1972, with retrospective effect from the 25th March, 1969. In the words of Kelson : "If laws which were introduced under the old Constitution continue to be valid under the new Constitution this is possible only because validity has expressly or tacitly been vested in them by the new Constitution. The phenomenon is a case of reception."
185. ' The next relevant observation reads as follows :- "As seen Article 280 itself provides : all existing laws shall subject to this Constitution continue in force. Martial Law Regulation 78 has been repealed, but if it was continued being repugnant to Fundamental Rights contained in Article, it would have been void under Article 7(1). It follows that if the orders of detention passed under Martial Law Regulation 78 are by virtue of Articles 280 and 281 deemed to have been validly made, they become unlawful from the commencing day, i,e, 2 I st April, 1972. This result would have been avoided only if Martial Law Regulation 78 was continued as an Act of the appropriate Legislature and included in the 1st Schedule to the Constitution. The orders under which Malik Ghulam Jilani and Mr. Altaf Gohar are being detained, will, therefore, be liable to be set aside on the ground that continuation of their detention is in violation of Fundamental Rights."
(ix) The views expressed by my Lord the Chief Justice and agreed to by Muhammad Yaqub Ali, J., were also concurred in by My Lord Sajjad Ahmad Jan, J. His Lordship also categorically held that decision in Dosso's case did not lay down the correct law, that our grund norm was derived from our Islamic Faith and the unalterable principles of Islam epitomized in the Objectives Resolution adopted by the Constituent Assembly of Pakistan on 7-3-1949, and having been invariably incorporated in all the constitutions by way of Preamble.
186. ' Regarding the plenary judicial power of the Courts his Lordship observed that - "the contents of that power cannot be shared with any other limb of the Government, executive or Legislature. While the jurisdiction of superior Courts may be regulated by the Constitution, any effort to destroy the judicial power is a senseless exercise."
187. ' Summary of conclusion of his Lordship is as follows :-
(1) The decision of this Court in Dosso's case does not lay down good law, and must be overruled.
(2) The Martial Law as proclaimed by General Agha Muhammad Yahya Khan was illegal. The assumption of power by General Agha Muhammad Yahya Khan as the President and the Chief Martial Law Administrator was wholly unconstitutional, and cannot be recognised as valid.
(3) General Agha Muhammad Yahya Khan was no doubt in effective control of Government power for the period that he remained in the saddle, and only those of his legislative and administrative acts can be recognised by the Courts, which may be found to be absolutely necessary on the doctrine of necessity within the limitations of that doctrine to be adjudged by the Courts.
(4) President's Order No, 3 of 1969 and Martial Law Regulation No 78 of 1971, not being valid laws, cannot be recognised as such by the Court, and have to be struck down."
188. ' Mr. Wahiduddin Ahmad, J., expressed his Lordship's full agreement with the reasoning and conclusions of the Chief Justice of Pakistan.
(x) In the last judgment by Mr. Salahuddin Ahmed, J.; who otherwise fully agreed with my Lord the Chief Justice a discordant note was, however, struck, in specifically conceding the revival of the 1962 Constitution. His Lordship framed two questions which were more or less identical with those framed by some of us before the cases were referred to a larger Bench. At the outset, his Lordship referred to the legislative device of conferring validity and continuation of existing laws by new dispensation when the existing order is substituted by it. His Lordship referred to the relevant provisions contained in the successive legislation viz. Section 30 of the Government of India Act, 1919, section 292 of the Government of India Act, 1935, Section 18 of the Indian Independence Act, 1947 ; Articles 221 and 224 of the Constitution of the Islamic Republic of Pakistan, 1956 ; Paragraph 4 of the Laws (Continuance in Force) Order, 1958; Article 225 of the Constitution of Pakistan, 1962 and paragraph 5 of the Proclamation of Martial Law, dated the 25th March, 1969.
189. ' Referring to the validation of Presidential Order 3 of 1969 and Martial Law Regulation No, 78 by the present regime his Lordship observed that they could only be considered from the point of view of the doctrine of necessity. No opinion was expressed regarding the legitimate credentials of the present regime, this issue was not before the Court. The relevant observation reads as follows :- "The position as it obtains vis-a-vis the President's Order No, 3, and Martial Law Regulation No, 78 is that there is a regime whose legality or legitimacy has not yet been questioned in any Court of law.
190. This regime has chosen to act under a law that has ceased to exist with the disappearance of the maker of the law. What then is the consequence of such Act ? In my opinion if the particular law has not been adopted or continued in a competent manner by the new dispensation, the Act is a nullity."
191. ' The discordant note to which I have referred at the outset can be traced in the following lines :- "A pertinent question, however, arises as to whether after the abrogation of the 1962 Constitution by General Agha Muhammed Yahya Khan his proclamation of the 25th March, 1969, this Court can still derive inspiration and authority from the said Constitution. The one short answer to this is that as soon as General Agha Muhammad Yahya Khan made his exit from the scene, the Constitution, which had been dorment in the meantime, revived."
192. ' It was further observed :- "As the Proclamation of the 25th March, 1969, and the Provisional Constitution Order, 1969, have ceased to exist due to the disappearance of General Agha Muhammad Yahya Khan from the scene, the 1P62 Constitution has come back with full force and is operative until it is validly replaced by the elected representatives of the people."
193. ' A little later it was observed :- "In Pakistan legal sovereignty rests with Allah. Therefore, judicial power has been conferred on the judiciary as agent of the Sovereign Authority namely Ailah."
194. ' It was next observed- "Besides, in any case where vires or validity of a law is in question, it is the Court that has a final say in the matter. It has been truly said that "Law" is that which the Court recognises as such."
195. ' His Lordship then referred to the concession made in this regard by the learned Attorney-General.
196. Reliance was placed in this regard on Reference by Governor-General wherein Court's power to discover law applicable to the Constitution had been accepted. It was observed:- "Finding himself in a constitutional doldrum the Governor-General sought guidance from the Federal Court which offered a legal solution of the constitutional problem."
197. ' Referring to the Dosso's case his Lordship observed :- "There have been numerous murmurs both inside and outside Pakistan as to the correctness of the decision in Dosso's case. It has now been asked to review its own decision. There is no doubt about the competence of this Court to review its own decision. Article 62 of the 1962 Constitution, which established the Supreme Court, has provided as follows : "The Supreme Court shall have power, subject to the provisions of any Act of the Central Legislature and of any Rules made by the Supreme Court, to review any judgment pronounced or any order made by it."
198. ' It was further observed that :- "This case gives me the impression that law has been sacrificed on the altar of expediency. The entire legal system of Pakistan has been derailed as a result of this decision, and the system requires to be put back on the rail, if Pakistan is to pursue its charactered course as laid down in the Objectives Resolution passed by the People of Pakistan. Stair decisis should have no application to Dosso's case.
199. ' Having overruled the earlier authority in Dosso's case his Lordship concluded by saying that :- "This will remove once for all the temptations that have been placed in the way of an adventurer seizing power illegally and destroying an existing legal order."
200. ' Unfortunately, the process of constitution making in Pakistan reveals a sad story of endless and agonising wrangle between ambitious bureaucrats, unscrupulous politicians and military dictators, on account of their mutual rivalries and tug-of-war in grabbing power and thus forcing the pace of polerisation leading to the visitation of two Martial Law regimes culminating in the disastrous consequences with which we are confronted today at the most critical juncture of our national history. This historic judgment in my humble estimation has paved the way for constitutional progress and will serve as a Beacon for future guidance of all the functionaries of the three limbs of the State by overruling the judgment in Dosso's case which like Dred Scott's case in American Constitutional History was a "self-inflicted wound" suffered by the Court and "public calamity", the Supreme Court has placed the ship of the Nation on an even keel, steered it clear of the shoals and guaranteed its smooth sailing with very little danger of constitutional crisis in future.
201. ' Let me hasten to submit that I may not be misunderstood to be in the least judicially critical of the Ruling of the Supreme Court in Dosso's case which not only proceeded on the authority of the most learned, experienced and eminent Judges of the country but was also upheld by the Privy Council in Madzimbamuto v. Larduer Burke and another (1) as laying down the correct law in the context of the situation in which it was decided and which was subsequently reaffirmed in several cases and held the field till it was overruled, but I have only referred to its inevitable consequences, which are rarely relevant considerations for the Courts.
202. ' I first take up Writ Petition No, 403 of 1972 wherein the conviction of Ijaz Hussain and Altaf Hussain, the two Qureshi Brothers, as well as that of Mujibur Rehman Shami under Martial Law Regulations 16(a) and 89 has been challenged. The relevant facts of the case have already been detailed in the earlier part of the judgment.
203. ' Before Mr. M. Anwar, learned counsel in this case, started his arguments, a preliminary objection was raised by the Attorney-General on the competency of the petition which had been filed under Article 96 of the 1962 Constitution on the ground that, in view of the promulgation of the Interim Constitution of 1972, wherein writ jurisdiction had been provided under Article 201, the writ petition needed amendment. Mr. M. Anwar did not, however, concede this position, and insisted that the 1962 Constitution being very much alive as the only validating Constitution in the field, the petition had rightly been filed under Article 98 of that Constitution.
204. ' Mr. M. Anwar raised the following contentions before us :-
(i) That the decision of the Supreme Court in Miss Asima Jilani's case had completely destroyed the Martial Law Regulations 16' (a) and 89 on the grounds that they had come from an incompetent source, and were intended only to entrench the usurper in power not being necessitated for an Orderly Government of the country, and also offended against the 1962 Constitution.
(ii) That even otherwise the Interim Constitution as envisaged by the Legal Framework Order had to be framed by an Assembly elected from all over Pakistan, including East Pakistan which claimed majority of seats, and as such the Constitution adopted by a minority would not be a valid document till such time as we accept de jure separation of East Pakistan.
(iii) That the mode and manner in which, under the National Assemblies Short Session Order, 1972, the meeting of the Assembly was convened the indecent haste with which the Interim Constitution was adopted, without amendment, as quid pro quo for the lifting of Martial Law, was wholly unprincipled in the Constitutional History of the Civilized World which rendered the Interim Constitution devoid of all sanctity ;
(iv) That the validating provisions contained in Articles 280, 231 and 295 of the Interim Constitution whereby the effect of Martial Law Regulations 16 (a) and 89 was sought to be preserved and
(1) 1968 All_E R 561 protected despite their repeal were contrary to the principles laid down by the Supreme Court in the aforesaid judgment whereunder only such measures of the usurper as were indispensably necessitated for the maintenance of Orderly Government of the Country had been condoned as the inevitable minimal ;
(v) That even otherwise, the validating provisions contained in Articles 280, 281 and 297 were repugnant to the Objectives Resolution which constituted the grund norm or the Ideological Basis of Pakistan, and, for _that reason, also was liable to be struck down
(vi) That, on 20th April; 1972, the Interim Constitution was an unauthenticated document which came into force only on 21st April, 1972 and as such, in view of the judgment of the Supreme Court the detenus were entitled to release on 20th April, 1972 inasmuch as the vested right had accrued in their favour to have the cases decided on the basis of law as it existed on that date which could not be taken away in view of the Colonial Sugar Refining Company, Limited v. Irving 1905 A C 369.
(vii) Assuming the validity of the Interim Constitution, it was contended that the latter had incorporated Article 2 of the 1962 Constitution, which appeared as Article 3 ibid, safeguarding the right of every citizen to be dealt with in accordance with law. Similarly, Articles 8 and 11 were respectively verbatim reproduction of Fundamental Rights 1 and 4 of the 1962 Constitution. Since these rights were never suspended, Articles 280, 281 and 295 had to be read subject to these Articles and had to be given the narrowest interpretation consistent with the Supreme Court's judgment. Reliance was placed on Zafarul Ahsan's case PLD 1960 SC 112.
(viii) Lastly, the plea of mala fide was raised. It was contended inter alia that, on the factual plane, none of the allegations of malice, mala fide etc., had been controverted on behalf of the respondents.
205. ' Before I proceed to consider the contentions raised by the learned counsel for the petitioner, I would respectfully observe that - since the theories of State, its three principal organs vi . The Executive, the Legislature, and the Judiciary, the concept of separation of powers and other democratic institutions, such as responsible and representative Government, determination of the will of people by free exercise of the right of adult franchise, etc., which are of platitudinous familiarity to a student of political science today were wholly unknown in the days of the Holy Prophet and the Khulafa-i-Rashidin being matters of subsequent development. It is, therefore, not possible to find relevant precedents in Islamic history which could be helpful in the solution of the Constitutional problems facing the superior Courts in our Ideological State of Pakistan. Of course the Judges have to draw inspiration from the original sources of Islamic Law namely, the Qur'an and the Sunnah, which is our grund norm, and may be called upon to break new ground.
206. Accordingly a certain amount of academic discussion which might even smack of pedantry would be inevitable. It may, however, be respectfully observed that notwithstanding the want of precedents referred to earlier we have nevertheless ample material to fall back upon, which is available in the writings of the great Muslim jurists and intellectuals on statecraft, Administrative and other Governmental affairs. Reference may be made in this regard.To- {{URDU TEXT}} Again, it is unfortunate that while in constitutional matters we have to perforce often fall back upon the British and American precedents and analogies for having inherited our judicial system from the former and adopted the federalism of the latter, we lose sight of the significant fact that democratic processes and institutions presuppose a certain level of education, political consciousness and training amongst the masses which unfortunately we do not possess and as such in the absence of these basic postulates one cannot avoid the impression of artificiality.
207. Development of Democracy is a painfully slow process and we have to struggle hard before we reach the take-off stage, dictatorship of which we have had enough being no substitute for it.
208. ' As regards the first question regarding the resurrection or revival of the 1962 Constitution on which would also depend the validity or otherwise of the Interim Constitution, we find that having unanimously struck down the assumption of power by General Agha Muhammad Yahya Khan, and his abrogation of the 1962 Constitution as also the subseciuent Martial Law Legislation, their Lordships had, invoking the Doctrine of Necessity, condoned some of his acts in order to prevent chaos. To be more precise, Hamoodur Rahman, C. J., condoned all transactions, past and closed, all legislative measures which were in accordance with the abrogated Constitution. All acts which tended to advance or promote the good of the people, and all acts which were necessary for the orderly running of the State in accordance with the Objectives Resolution. Although his Lordship made note- of the meeting of the National Assembly and its ratification of the assumption power by Mr. Zulfiqar Ali Bhutto yet as stated earlier, his Lordship left open the question of the validity of the present regime. Similarly, Salahuddin. J. Refrained from expressing any opinion about the validity of the existing Order. However, in his judgment, his Lordship twice referred to the revival of the 1962 Constitution. The relevant observations are contained in page 198 of the impugned judgment and have already been reproduced earlier at page 34 of this judgment.
209. ' On the other hand, Ch. Muhammad Yaqub Ali Khan, J. Clearly held as also acknowledged by Mr. Manzur Qadir before their Lordships that "It was based on the will of the chosen representatives of the people" and that the invalidity of the Legal Framework Order did not affect the legality of the Elections held under it to the National Assembly and Provincial Assembly. The relevant observation of his Lordship has been reproduced in extenso at page 27 of this judgment.
210. ' Having carefully considered the position, I respectfully bow before and adopt the view expressed by Ch. Muhammad Yaqub Ali Khan, J. Their Lordships of the Supreme Court were unanimous in declining t concede constitutional validity, to the assumption of power by General Agha Muhammad Yahya Khan, who was declared to be a usurper, an only some of his acts were condoned as the inevitable minimal under the Doctrine of Necessity. This would by implication have revived the 1962 Constitution whose abrogation was inter alia struck down by their. Lordships but, since then, much water has flowed from under the bridges. Although East Pakistan is still de jure part of Pakistan yet its successful invasion by India has resulted in its complete dismemberment at least fo the time being the Central Government of Pakistan having lost al control over it. Accordingly, the 1962 Constitution, even if- deemed to be alive, had became wholly unenforceable. Even otherwise we cannot lose sight of the fact that the people of the Country when they ros against Field-Marshal Muhammad Ayub Khan, had unanimously rejected the Presidential System of Government on which the 1962 Constitution was based. This is not all. As a result of the First General Elections, in the country based on direct exercise of the right of franchise on the principle of one man one vote, the Peoples Party headed by Mr. Zulfiqar Ali Bhutto emerged as the majority party in this part of the Country ; while with declaration of Bangla Desh as an independant State recogni by some of the big powers of the world, all immediate hopes of our reunion have evaporated into thin air at least for the time being. It was, in the circumstances, that the usurper was constrained to surrender power in favour of Mr. Zulfiqar Ali Bhutto who assumed the office of the Presiden and Chief Martial Law Administrator, the first Civilian to be s designated. He then convened the meeting of the National Assembl under the National Assembly Short Session Order, 1972, which, of course, was attended only by Members from West Pakistan, including a sizabl number of Members of the Opposition parties. Remarkably enough th Assembly unanimously expressed confidence in the leadership o Mr. Zulfiqar Ali Bhutto and also adopted the Interim Constitution without much debate. Of course, the procedure adopted was rather unique and unprecedented inasmuch as the business (i) of a Vote of Confidence in the President, (ii) continuance of Martial Law till 14-8-1972, which wa excluded by its sudden and unexpected termination by the President, and (iii) the Adoption of the Interim Constitution was to be transacted, in three days, by way of a Motion to be moved by a Minister with no provision for amendment except by the Mover.
211. ' Article 139 provided for unprecedented concentration of powers in the hands of the President, though temporary in nature being exercisable till 31-3-1973, enabling him to alter or amend the Interim Constitution in any manner he liked. It was particularly in this context that the argument of the acceptance of the Constitution as quid pro quo for lifting Martial Law was advanced by Mr. M.
212. Anwar. Having regard to the stresses and strains through which the Nation had to pass, one wing of the Country taken away and being under foreign domination, the enemy's forces deployed all along the borders, one lakh of our bes troops being in the hands of the enemy as P.
0. Ws. The economy being] in shambles and the morale at the lowest ebb, a greater national crisis could hardly be conceivable. Never in our history did we face challenge of such magnitude and complexity both internally and externally. It was in such a predicament that the National Assembly met and hurriedly adopted the Interim Constitution taking, of course, due care of the conseciuences of the separation of East Pakistan as reflected in Articles 67, 72, 73, 95 and 96. 10 whatever criticism the validity of the Constitution might otherwise be open or exposed, regarding its form procedure or substance, the fact remains that it was essentially the handiwork of the chosen representatives of the people.. In these circumstances a greater justification for invoking the Doctrine of Necessity would be difficult to conceive in order to seekcondonation of any errors or omissions, with the object of tiding over th-e worst crisis in our national history.
213. ' Having perused the judgment of the Supreme Court in Dosso's case as also the judgment in Miss Asima Jiluni's case, which has overruled the former, I find that their Lordships had referred to the Doctrine of Necessity with reference .To Kelsonian Theory. It may be respectfully observed that in the presence of the immutable Divine Law available in the Qur'an and Sunnah forming our grund norm, we do not have to fall back upon the authorities of the Western Jurists but can seek guidance from the Qur'an itself. It says:- "But he who is driven by extreme need to partake of any of them, not being defiant of the law nor exceeding the limit of his need, it shall be no sin for him." {{URDU TEXT}} "But whosoever is driven by necessity, not intending disobedience of exceeding his need should know that the Lord is most for- giving."
214. ' It is on the basis of these verses that the Muslim Jurists formulated the principle. {{URDU TEXT}} "Necessities condone violation of prohibitions." Another principle enunciated in this regard is {{URDU TEXT}} "The extent of necessity is to be assessed with regard to the importance of the matter." Surely, assumption of power by President Zulfiqiar Ali Bhutto and the convening of the National Assembly by him in a short session in an attempt to impart a Constitutional direction to the National Affairs was the crying need of the hour at this critical juncture of our national history.
215. In view of the above discussion, I repel the contention that the 1962 Constitution is still in the field and uphold the validity of the Interiml E Constitution.
216. ' I now take up the next important contention namely, that even if one were not to causation the validity of the Interim Constitution, its validating provisions being directly in conflict with the Objectives ' Resolution which formed the grund norm of our State were liable to be struck down. In support of the so-called repugnancy or inconsistency learned counsel contended-
(i) that in the first instance that all pieces of martial law legislation condoned or uncondoned which were held by their Lordships of the Supreme Court to be invalid having flown from illegitimate source of the usurper, were validated under Article 281;
(ii) that all proceedings and actions taken under the invalid laws were also validated;
(iii) that under Article 295 all proceedings taken, actions taken, sentences pronounced, rights accrued and liabilities incurred under the invalid laws were kept alive despite their repeal; and
(iv) that the validating provisions amounted to convictions by the legislature as it were by means of a Bill of. Attainder and lastly that these provisions had not only set at naught the decision of the Supreme Court but had also taken 'Away the Court's inherent and fundamental right of judicial interpretation.
217. ' Before assessing the merit or otherwise of the contentions raised by the learned counsel it is necessary to have a clear concept of what is our grund norm and to what extent the validating provisions in question come into conflict with it. Unlike the Secular States of West Pakistan is an Ideological State which came into existence as a result of the successful struggle of the Muslims of undivided India who wanted a separate homeland in order to be able to order their lives in accordance with the principles of the Holy Qur'an and Sunnah, sought to be epitomized in the Objectives Resolution which according to Mr. Brohi is the corner stone of Pakistan Legal edifice and from which the Constitution must draw its inspiration. It was in this context that my Lord the Chief Justice of Pakistan referred to the Immutable principles enshrined in the Holy Qur'an. It is, thus, clear that the real grund norm of Pakistan is the Qur'an and the Sunnah as sought to be reflected in the Objectives Resolution which invariably found place in all our Constitutions 1956, 1962 and 1972 as a Preamble.
(i) From a careful and analytical study of our grund norm as explained in the "Islamic Law and Constitution" by Maulana Abul Aala Maududi and "The Principles of State and Government in Islam" by Muhammad Asad, the two most eminent living jurists of the Muslim World, it is abundantly clear that the concept of an Ideological Islamic State is wholly different and distinguishable from that of a nation-state of the western pattern based on community of race, language and geography. An Ideological Islamic State transgresses all such barriers and is based on community of faith alone.
(ii) The second point of fundamental difference is that in the Islamic State Sovereignty belongs neither to the people as in the If America, nor to the Parliament like the U. K., but it vests absolutely and exclusively in God Almighty and is to be exercised through the chosen representatives of the people as His delegates and vice gerents. This can be clearly derived from the following verses of the Holy Qur'an- {{URDU TEXT}}
(iii) The third point of distinction which follows as a necessary corollary from No, 2 is that unlike the leg of a secular democracy, ;power of legislation in an Islamic State is not absolutely unfettered but is circumscribed by limits imposed by the immutable Divine Laws as contained in th Qur'an and Sunnah. For instance, it would not be open to the legislature of an Islamic State to legalise homeo sexuality on the basis of its collectiv wisdom or declare anything else as lawfal which has been forbidden in Islam. The reference is the perfection of Din as mentioned in the verse of the Holy Qur'an coupled with the Doctrine of Finality of Prophethood is not only suggestive of the need but also stresses the imperativeness of a continuous process of enquiry, investigation andl research through Ijtihad {{URDU TEXT}} with a view to solving new and unprecedented problems by analogy and reasoning which guarantee evolution and development of Islamic Law within the prescribed limits. It would not be out of place to quote in this context the following traditions of the Holy Prophet (p.b.u.h.) in-- {{URDU TEXT}} ' This function in the present set up is partly performed by the superior Courts of the Country irrespective of the qualifications or want of qualifications of the learned Judges (and I apologise for saying so) all of whom may not have direct access to the original sources of Islamic Law.
218. ' As stated earlier the present day popular concepts of State were matters of subsequent development not known in the days of the Holy Prophet (peace be upon him) and the pious successors (Khulafa-iRashidin). In the words of Arnolda in "The Caliphate"- "The Prophet had been at one and the same time head of the State and head of the-Church. The paramount control of political policy was in his hands ; he received the ambassadors who brought the submission of the various Arab tribes, and he appointed officers to collect dues and taxes. He exercised supreme authority in military matters and the dispatch of military expeditions. He was at the same time supreme legislator, and not only promulgated legal statutes but sat in judgment to decide cases, and against his decision there was no appeal. . . At the same time he performed the highest ecclesiastical functions, and as Imam led the prayer in public worship at the canonical hours in the Mosque of Medina. In all these respects Abu Bakr was a successor of the founder of the faith."
219. ' He was not nominated by the Prophet (p.b.u.h.) nor did he lay any claim to the Caliphate on the basis of heredity. The matter was left to the good sense of the faithful followers of whom 40 prominent persons had assembled in Sakeefa Banu Saad and elected Abu Bakr in an emergent meeting. Abu Bakr nominated Umar in consultation with the leading companions. When he was faintly wounded it was suggested to him that he should nominate some Abdullah as successor and the proposal was scornfully rejected by him. He, however, left the matter in the hands of Abdur Rehman Auf to be decided in consultation with a panel of prominent and influential companions.
220. This too was a case of emergency. They elected Hazrat Usman who was succeeded by Hazrat All who would have been the first successor if the matter had to be decided on the basis of heredity.
221. Even before his election he never had any desire muchless keenness to become the Caliph and was elected in a proper democratic process based on (i) the Quranic principles of as ceintained in the following verses {{URDU TEXT}}
(ii) The two sayings of Caliph Omer also are very relevant and signi-ficant- {{URDU TEXT}} ' Hazrat Ali while interpreting the verse- -{{URDU TEXT}} and in particular giving the connotation of "Azam" explained it as- {{URDU TEXT}} ' In so far as the judicial functions are concerned as stated earlier all the three limbs of the State namely, Executive, Legislature and Judiciary were combined in the Holy Prophet (p.b.u.h.). He was the "Supreme Legislator", the highest executive and the head of justice. It was observed by S. A.
222. Hasni in his "Constitution of Arab Administration"- "After the death of Muhammad (peace be upon him) the judiciary became independent unit. The Caliph remaining the Supreme Judge only in name. Of course rest of the grievances {{URDU TEXT}} in which power offenders were involved were tried by the caliph himself. Almamun had a complaint against his son. Tried by Qazi in his presence. Prince was found guilty and forced to make amends to the aggrieved party."
223. ' I am humbly of the view that all the three limbs of the State namely, the Executive, the Legislature and the Judiciary perform as trustees delegated functions of sovereignty within their respective spheres and the reference in the Holy Qur'an to the obedience of{{URDU TEXT}} is equally applicable to the members of the judiciary. Significantly enough in the next verse {{URDU TEXT}}has been expressly excluded in so far as the sources of the law to be enforced in the settlement of disputes are concerned for which we have to exclusively turn to Allah and His Prophet (p.b.u.h.). In other words all disputes between man and man, subject and State have to be determined in accordance with the Qur'an and Sunnah. There are several other injunctions in the Qur'an wherein the Muslims have been positively enjoined to get matters decided in accordance with Divine Law as is clearly indicated in the following verses :- {{URDU TEXT}} l ' In fact the members of the judiciary have not only been permissively and persuasively enjoined to do justice as directed in the following verses :- {{URDU TEXT}} but have also been placed under a statutory obligation to determine the disputes litigated before them in accordance with the Divine Law as is clearly laid down in the following injunctions :- In fact, a stern warning has been administered for non-compliance with it. While interpreting the verse: {{URDU TEXT}} Maulana Maududfin `Tafheemul Qur'an' {{URDU TEXT}}observed in Urdu which rendered into English would read somewhat as under- "The concept of 'Oolilame {{URDU TEXT}})comprises of persons who are in charge of the collective affairs of the Muslims. They may be Ulema offering guidance on religious matters, or the political leaders, the civil servants running the administration or judges deciding disputes in Courts etc.."
224. ' Interpreting the same verse Maulana Amin Ahsan Islahi observed in Tadabbar-i-Qur'an (3T) "since at the time -of Revelation of this verse there was no question of any State or caliphate, the expression `Oolilame referred to in that context to the prominent leaders of the Muslims in various fields".
225. From the foregoing discussion I am of the humble view that in an Islamic State the ideal position would be that members of the judiciary while discharging their judicial functions also act as Trustees of Divine Sovereignty as much as members of the Legislature do. This view also appears to me to be in accord with view taken by the Supreme Court as indicated by the following observation of my Lord the Chief Justice- "The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit."
226. Thus, it is abundantly clear to me that in an Ideological Islamic State members of the judiciary are called upon to interpret and enforce Diviner ' Laws (as delegates of the Shari {{URDU TEXT}} or any other man-made law enacted within the prescribed limitations and are under an obligation to dispense justice in accordance with the same.
227. ' The next question that arises for consideration however is as to what should be the mode of exercise of this delegated Divine Power as entrusted to the members of the judiciary. It could be either exercised within the frame work of the Constitution or independently of it. The first mode appears to have been universally adopted alover the civilised world wherein jurisdiction of the Courts has been clearly defined in the Constitution and the exercise of judicial review is confined within its four corners. A statute is declared void only if it is repugnant to the Constitution. In my humble view the Objectives Resolution has been purposely given no higher status in the Constitution than that of unjusticiabie and preambulatory provision. The expressions "principles of Democracy, freedom, equality, tolerance and social justice" as enunciated by Islam to be reflected in the Constitution may be capable of different interpretations varying from time to time notwithstanding the immutability of the Divine Law. Neither the Ulema nor for that matter the judges can remain completely detached and unaffected by the political and sociological assumptions of their times. It was observed by Justice Holmes an illustrious American Judge, as follows :- "The felt necessities of the times, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rule by which men should be governed. 1 have never known any judges who discharge their judicial duties in an atmosphere of pure, unadulterated reason. Alas, we are all, the common growth of Mother Earth, even those of us who wear the long robe."
228. Obviously, the fundamental law of the land cannot be left to the vagaries of conflicting and changing notions leading to constantly endless litigations Court for the resolution of theological controversies and polemics. Thus, the only sound principle of policy is to leave the matter to popular will reflected in the chosen representatives who can frame as also amend the Constitution subject, of course, to the Divine limitations. In my humble view therefore this Court should exercise only such jurisdiction as has been conferred on it by the Constitution and the law, both of which can b presumed to be made by the chosen representatives of the people within the prescribed limits of Shariah and in accordance with the Objective Resolution. Of course, what is law, is to be ultimately declared and determined by the Court which can in case of a proper challenge before I strike down on the ground of repugnancy to the Constitution. Member of the National Assembly functioning as Constituent Assembly are not only equally accountable to God Almighty in the matter of legislation but ar_ also directly answerable to the people of Pakistan who have entrusted to them the sacred task of framing the Constitution in accordance with th Qur'an and Sunnah. It could be safely presumed that they will not betray the trust reposed in them. Even otherwise, the theory of "separation o powers" follows as a necessary corollary from the federal pattern of Government which the nation has decided to adopt subject of course to the fundamental differences between an Islamic State and Western Republic. Carl, J. Friedrich observed in his "Constitutional Government and Democracy" (page 224) as follows :- "In the discussion of federalism it has been shown that a constitutional judiciary is an integral part of any federal structure. If there is to be a division of powers between the central and local authorities, conflicts over the respective spheres of authority are bound to arise, and a procedure for their settlement is obviously needed. Generally speaking, this need is analogous to the need for an arbiter between authorities dividing powers functionally under some kind of separation of powers. Therefore, it is not surprising that federalism should reinforce the idea of judicial review, alongwith the idea of a Constitution which embodies "higher" law than ordinary legislation. Though judicial review of legislative acts has disappeared completely in the English constitutional tradition, it has reappeared as part of the pattern of the Commonwealth of Nations ; it has also become an integral part of federalism in several of the Dominions, even though these Dominions are governed by cabinets responsible directly to a parliament. In Australia, judicial interpretation has developed important constitutional principles and resembles the American tradition most closely.
229. Significantly, Australia is the most markedly federal of these Dominions.
230. It is, of course, possible to keep such a constitutional judiciary over federal-State coniroversies entirely separate and distinct, as was attempted by setting up the Court or State under the Weimar Republic. Explicitly that was the position of the United States Supreme Court. But since, the Supreme Court, unlike the German Court of State, is also a Court of final appeal in matters of federal legislation, it was natural for the several functions to merge. The Supreme Court is "the ultimate organ ... For adjusting the relationship of the individual to the separate States, of the individual to the United States, of the forty-eight States to one another, of the States to the union and of the three departments of Government to one another."
231. ' In "American Constitutional Law" by Mason and Beaney, it was observed at page 12 (4th edition)- "The principles of separation of powers and of federalism, the "due process" clauses of the Constitution and the doctrine of judicial review all manifest determination to oblige governments to control itself. None of these limiting principles is spelled out ; they are either implicit in the organization and structure of the Constitution, or, as with judic al revie v, deducible from what Chief Justice Marshall identified as 'the theory of our government'."
232. ' It was further observed at page 15 of this Book- "The most distinctive feature of our Constitution is that it is law, paramount, supreme law, and subject to interpretation by the Supreme Court in cases properly before it. Judicial review is an implied, not a substantive power ; it is implied from, and is incidental to, the Court's judicial power- the power to interpret law and decide cases. Chief Justice Marshall portrayed judicial review as a necessary adjunct to both a written Constitution and a government deriving its power from the people. Nor does judicial power, he maintained, give the Supreme Court any practical or real omnipotence. The Court is simply exercising judicial power conferred by the Constitution and sustained by the principle of separation of powers. "It is, emphatically, the province and duty of the Judicial department to say what the law is", the effect, in theory, is not to elevate Court over Legislature, but rather to make "the power of the people superior to both."
233. ' In my humble view the above quotations offer a safe guideline avoiding conflicts and clashes between the judiciary and the Legislature. It is, however, for the Constituent Assembly comprising the representatives of the people of Pakistan whose primary function it is to frame a constitution in accordance with the grund norm to specifically provide for this in the Constitution and merely to preface the Constitution with the Objectives Resolution as a preambuiatory provision is not good enough. In fact, according to the well-settled principles of interpretation, the preamble which is a non-substantive and non-justiciable provision is invoked only in aid of interpretation of the constitutional provisions. In support of this proposition reliance may be placed on Abdur fauf and another v. N.-W. F. P. (1), decided by Full Bench. Their Lordships in this elaborate judgment relied upon Propatlal Shah Partner of Messrs Indo-Malayan Trading Co. v. The State of Madras (2), J.
234. Nageswa ra Rao, v. The State of Madras (3) and A. Thangal Kanju Musaliar v. Venkatachalam (4). It was observed 'by their Lordships that there was also an initial presumption in favour of constitutionality of enactment -.Nd the burden to show that there had been a transgression was on him who attacked it. Even in the American Constitution whereafter a protracted controversy leading to constitutional battles the most important being those fought in the days of Jafferson (Marbury v. Madisun), or Linclon Dred Scott's case and Rosevelt's "New Deal Struggle with Nine Old Men", the exercise of judicial review variously described by the detractors as "usurpation", "judicial veto" with despotic potentialities, judicial log-jam etc., was confined to the examination of the validity of statutes vis-a-vis the Constitution.In my humble view, therefore, while exercising its jurisdiction this Court cannot go beyond the prescribed limits of its powers under the Constitution and the law. For instance in Article 46 of the Interim Constitution dealing with the eradication of Riba this expression has been translated as "usury" to the presumable exclusion of "interest" which would be a highly controversial matter. It would not be, however, within the competence of this Court, to examine the question of repugnancy of this provision to the grund norm in the absence of express constitutional provision to this effect.
235. ' In East Pakistan and others v. Mehdi Ali Khan Panni (5), a similar argument was raised before their Lordships by Hamidul Haq Chowdhry challenging the acquisition by Government of certain trust properties on the ground that the creation of waqf having been based on the Divine Law could not be overridden. Repelling the argument their Lordships held that no jurisdiction under the Constitution to examine that aspect of the matter. Responsibility to consider the question of the repugnancy of the Islamic Law lay on the Legislature which may be advised by the Advisory Council of Islamic Ideology of Pakistan on these matters.
(1) PLD 1958 Pesh. 73 (2) AIR 1953 SC 274
(3) AIR 1954 Mad. 643 (4) AIR 1956 SC 246
(5) PLD 1959 SC 387 ' It may be observed in this context that in my humble view although in Miss Asima Jilani's case their Lordships referred to the Objectives Resolution as the grund norm forming the ideological basis of Pakistan yet Martial Law legislation was struck down by their Lordships not so much on account of its repugnancy to the grund norm but because of illegitimacy of its source having been made by the usurper who had forcibly grabbled the right of the people to exercise powers of sovereignty as delegates and Trustees of Allah.
236. ' I now proceed to examine the contention raised on behalf of the petitioner in his challenge to the validating provisions of the Interim Constitution contained in Articles 280281 and 295. It would be advantageous at the outset to reproduce the statutory provisions : "280.-(1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
(2) The Proclamation made on the twenty-fifth day of March, 1969 is revoked, with effect as from the commencing day, and the Orders specified in the Sixth Schedule and any Orders amending those Orders are repealed, with effect as from that day, but this clause shall not affect any existing laws made under those Orders.
(3) All Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed, with effect as from the commencing day, and on the day each Martial Law Regulation and the Martial Law Orders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such : Provided that no Bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders soecified as aforesaid shall be introduced or moved without the previous sanction of the President.
(4) For the purpose of bringing the provisions of any existing law into accord with the provisions of this Constitution (other than Part II of this Constitution), the President may make, by Order, such adaptations, whether by way of modification, addition or omission, as he may seem to be necessary or expedient, and any Order so made shall have effect (or be deemed to have had effect) from such date, not being a date earlier than the commencing day, as may be specified in the Order.
(5) The President may authorize the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (4) in respect of laws relating to matters with respect to which the Provincial Legislature has power to make laws.
(6) The powers exercisable under clauses (4) and (5) shall be subject to the provisions of any Act of the appropriate Legislature.
(7) Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no actual adaptations have been made in such law by an Order made under clause (4) or clause (5) construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Constitution.
(8) In this Article, "existing laws" means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and letiers-patent, constituting a High Court, and any notification, and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the commencing day".
237. "281.-(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March, 1969, are hereby declared, notwithstanding any judgment of any Court, to. Have been validly made by competent authority, and shall not be called in question in any Court.
(2) 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, on or after the twenty- fifth day of March, 1969 in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.
(3) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of exercise or purported exercise of 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."
238. "Article 295.-Where a law (including a President's Order, a Martial Law Regulation or a Martial Law Order) is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not, except as otherwise provided in this Constitution :-
(a) revive anything not in force or existing at the time at which the repeal takes effect ;
(b) affect the previous operation of the law or anything duly done or suffered under the law ;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment ; or ( f ) affect the continuance of any body or authority constituted by or under such law ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, and such body or authority continued as if the law had not been repealed In the first instance it may be observed that validation of proceedings under the repealed laws is not something unique or unprecedented but of the other hand is a normal incidence of legislation.
239. It is a useful legislative device usually employed to deal with the determination and disposal of questions arising as a result of the repeal of a particular statute. My Lord Salahuddin, J., has referred to a series of such provisions in chronological order. Normally a repealing law makes specific provisions in this regard. However, in the absence of such a saving clause, the provisions of the General Clauses Act are usually invoked. As such validation is a familiar device resorted to by the law-givers to avoid legal complications arising out of the repeal of the statute and ensure continuity of proceedings. The validation of the Martial Law statute also proceeds on similar considerations. It would be absurd to conceive that the chosen representatives of the people were especially enamoured of the martial law itself or the legislation enforced thereunder. However, this Court cannot within legitimate exercise of its judicial function question the wisdom of the Constituent Assembly in the matter of validation of these laws. The point where the shoe really pinches, however, is that even the laws which were not condoned by the Supreme Court in its judgment because of their illegitimate source have been validated over the head of the Supreme Court and notwithstanding its finding. In my humble view this Court is not competent to question the wisdom of the Constituent Assembly e Yen in this regard. It is hardly necessary to establish the competence of the Parliament to repeal statute or any decision of the Court which it considers either unsatisfactory or unwise. Herald, J., Laski in his book "Parliamentary Government in England" observed as follows:-- "This is the famous Rule of Law which, for something like two hundred years, has been prized by Englishmen as the safeguard of their freedom. It is not, indeed, intended to make the judges the masters of Parliament ; judicial review, in the American sense, is, I think happily; unknown to the British Constitution. It is always open to Parliament to repeal by statute any decision in the Taff Vale case (1901) A C 426 and an Act of Parliament amended the difficulties that seemed likely to result from Overtoun v. Assembly of the Free Church of Scotland (1900) A C 515."
240. In fact, many laws would not have seen the light of the day but for certain judgments of the Courts while the Legislature often amends the laws in the light of the Courts, judgments, at times one cannot avoid impression that it tries to play hide and seek with the judiciary. Under the British System of Government, British Parliament of which one limb namely, the House of Lords also performs judicial functions being on the apex of the judicial hierarchy is supreme and sovereign having unfettered right to restrict and curtail the jurisdiction of the Courts. Under the American System, however, with the doctrine of judicial review wherein the Legislature has acquiesced in what has been critically termed as "judicial usurpation", the Supreme Court has a right to strike down any piece of legislation which is repugnant to the Constitution. Be that as it may, however, I am not persuaded to think that the martial law legislation had any particular charm or attraction for the members of the National Assembly. Of course, in their wisdom, they have gone a step further having closed the door of judicial review in so far as validation of martial law statutes is concerned. Since this provision even though sub-constitutional in nature has been adopted by the Constituent Assembly for, the beneficial purpose, of abridgment of gulf between the outgoing regime and the new popular dispensation in the interest of continuity, it appears to me that no exception can be taken to such a provision on any sound legal basis.
241. ' Mr. A. K. Brohi in the "Fundamental Law of Pakistan" which though confined to the 1956 Constitution in his magnanimous and a work of lasting utility both for the lawyers as well as the judges, observed - "What are the matters that should be appropriately included in the written constitution of a country, is a question that is incapable of being answered in terms of any principle. As a matter of experience, one observes that the different written Constitutions of the world show different kinds of topics in regard to which provisions are made in those documents. Whether the Constitution should contain a few essential provisions or it should be one which should have reference to even the unessential aspects of Statecraft is really a question for the Political Scientist to answer."
242. ' Referring to the 1956 Constitution Mr. Brohi has said :- "it also coniains elaborate provisions with regard to the setting up of several commissions and councils which are not of any fundamental importance to the life of the State and which could well have been set up by means of ordinary legislation."
243. ' The following observation by Muhammad Munir, C. J., as he then was, in Malik Khizar Hayat's case
(1) is also in point :- "A constitutional Authority like the Constituent Assembly with no limitation on its powers may at any time encroach upon the sphere of a Legislature which is subject to its constituent authority and all such encroachments whether they take the form of validation of laws or of making of laws for that Legislature are in substance provisions as to the Constitution of the State."
244. ' The other relevant observation in the same judgment may also be reproduced with advantage - "Where a law is invalid on the ground that it is in excess of powers of the Legislature passing it, its validation by a Constituent Authority must Ex Hypothesis be deemed to he a Constitutional Legislation."
245. "In such matters, the Courts are not to question the motive or the policy of the Legislature or to refuse to give effect to legislation simply because it appears to be harsh or unreasonable or vindictive. Their plain duty is to ascertain the intention of the Legislature, and to carry it out irrespective of the consequences that may ensue to a particular party."
246. ' In this context Maxwell in his 'Interpretation of Statutes' (page 392) has observed as follows :- "a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment, or anything duly done or suffered under it, and any investigation, legal proceeding, or remedy may be instituted, continued, or enforced, in respect of rights, liabilities and penalties under a repealed Act, as it' the repealing Act had not been passed."
247. ' In Muhammad Ali & Sons v. Chief Commissioner of Karachi (2), it was observed :- "The first contention of the learned counsel for the petitioner is not
(1) PLD 1956 SC 200 (2) PLD 1957 Kan 320 well-founded. The legislative authorities are entitled to pass validating Acts and there is no limitation on the powers of the Legislature to enact such statutes. It is open to the Legislature within the sphere of its constitutional activities, to give retrospective effect to the amendment made in a statute notwithstanding that the earlier law under the same statute is declared by Courts of law as inoperative and ultra vires."
248. ' It would not be out of place also to refer to the observation made by Qadeeruddin, J., in Chief Settlement and Rehabilitation Commissioner v. Devachand Muljimal (1), While discussing the effect of validation, his Lordship observed :- "The above provision means that whatever has been done under the unamended Acts before the promulgation of the amending Ordinance is to be taken to have been done under the amended Acts. The object of the provision appears to be that nothing done and no action taken or order passed or rule made or notification issued before the amendment under the unamended Acts should be open to question by reason of the fact only that it was not done, taken, passed, made or issued in accordance with the amended Acts."
249. Significantly enough, unlike the provisions contained in sub-Article (1) of Article 281, there has been no express ouster of the jurisdiction of Courts to question the validity of the proceedings taken under the martial law legislation as envisaged by Article 281(2). In all fairness to the National Assembly it cannot be characterised as an accidenttal omission on its part but something deliberately and purposely done. In other words, the only logical and reasonable inference that can be drawn from the provisions read together, is that while in respect of validation of laws this Court's jurisdiction has been expressly ousted, it can still exercise some sort of jurisdiction in respect of the proceedings taken under the validated laws. For the proper appreciation of the correct legal position, as to what is the extent and scope of that position, it shall be my endeavour to examine the relevant provisions.
250. ' Although prima facie, the use of the expression "purport exercise" of powers and "shall be deemed and always to have been", would connot the conferment of the widest amplitude of validity on the proceedings ye I find it unable to agree with the learned Attorney-General that this Court should completely stay its hands in this regard. The two expressions "purporting" and `deeming" have been interpreted in several authoritie which may be briefly discussed as follows :- "Purport exercise" according to Stroud's Dictionery Vol. II mean "Holding as valid the exercise of power which could not otherwise be exercisable at the relevant time."
251. ' According to Oxford English Dictionary, Vol. VIII, page 1267 "purporting" means-The previous claim without pronouncing also the truth o validity of claim". According to Iver's Law Lexicon, page 1053, "purporting" would seem to prevent objection being raised against the validity of an Act which might otherwise be raised. It thus meant conference of validity on something purported to be done.
252. The expression "purported exercise" as employed in Article 281(2) as also in Article 295 of the Interim Constitution was examined by the Supreme Court in Nawab Haji
(1) PLD 1968 Kar. 107 Khair Muhammad's case (1) wherein the jurisdiction of the Courts was excluded to question any order made or purported to be made thereunder, in contradistinction to an expression "any order made" in connection with paragraph 27 of the West Pakistan Land Reforms Regulation. The relevant provision ousted the jurisdiction of the superior Courts to examine the validity of any order made thereunder. Their Lordships took the view that in order to claim immunity an order made has to be made in accordance with the regulation whereas order purported to be made need not comply with the relevant provisions. In this view of the matter it was held that the Court did have the jurisdiction in the matter. The relevant observation is as follows :- "By paragraph 27 of that Regulation, it provided that no order made thereunder shall be called in ciuestion in any Court including the High Court and the Supreme Court. The words are not "any order purporting to be made", but "any order made" and therefore the requirement is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with the Regulation in its relevant provisions. Before the 7th June, 1962 there were in force certain Martial Law Regulations which had effect to save actions of e. g., the Land Commission authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution, and the bar of jurisdiction under paragraph 27 was limited thereafter to orders which were in substance and form made in compliance with the Regulation".
253. It appears that there has been some conflict of views in regard to the precise connotation and scope of validity of an act conferred on it by thel curative or validating expression "purporting to be done". According to one view the curative effect would be confined only to acts negligently or inadvertently done and did not cover the mala fide acts. This was taken in the following among other cases. Muhammad Siddiq Ahmad v. Panna Lal I L R 26 All.
220. Sardar Singji v. Ganpatsingji I L R 14 Bom.
254. 395.
255. Peary Mohan Das v. D. Weston and others 13 I C 721 Cal.
256. Birj Mohan Singh v. The Collector of Allahabad as President of the Municipal Committee of Allahabad I L R 4 All. 102, ' The other view that the extended scope was good enough to cover even illegal acts including those of mala fide, was expressed in the following and some other authorities : ' The Collector of Bijnor, Manager of the Estate of Chaudhry Ranjit Singh, a minor v. Munavar I L R 3 All.
20. .Ram Kishun Prasad v. Ram Narain Parasad AIR 1934 Pat.
257. 14.
258. Davis .1. C. And Haveliwala, A. J. C. Ildliaram Vassanmal Nasir and another v. Grahams Trading Co.
259. Ltd. And others AIR 1937 Sind 281.
260. ' It appears that most of these authorities were based on Bhag Chand Rag Dosa and others v.
261. Secretary of States India (2). While interpreting the expression "purporting to be done" as employed in section 80 of the C. P. C. Their Lordships observed that it does not deem any implications or exceptions.
(1) PLD 1966 SC 640 (2) AIR 1927 P C 176 It may be observed with utmost respect that while giving the widest scope to the connotation of "purported exercise" as being curative of all irregularities and even illegalities. I am afraid the blanket pro vision cannot be extended to cover mala fide acts, which in fact, shalil be deemed to have been born on the wrong side of the blanket which tends to further enlarge the scope of validating protection. The word "deemed" has been interpreted in several authorities commanding the highest respect. To quote only a few of them reference may be made to the following :- Commissioner of Income-tax Bombay Presidency AIR 1930 P C 54. East End Dwellings Co. Ltd. v.
262. Finsbury Borough Council 1952 A C 109. State of Bombay v. Pandurang Vinayak and others AIR 1953 SC 144 Commissioner of Income-tax Delhi v. S. Teja Singh AIR 1959 SC 352.
263. ' In 29 A. E. R. 638 it was observed as follows :- "The word 'deemed' introduces an artificial definition which, in my view, is only to be applied as long as the conditions exist in which it is intended to apply."
264. ' The relevant observation in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1), reads as follows :- "If you are bidden to treat imaginery state of affairs as real, you must, surely, unless prohibited from doing so, also imagine as real the consequences and indicate which, if inevitable, have flowed from or accompanied it."
265. ' These authorities were relied upon in Agha Shauket All v. Settlement and Rehabilitation Co amissioner, Lahore and another (2) and Begum E. H. Syed v. Mst. Afzal Jehan Begum and another (3).
266. ' I would now proceed to examine the precise expression "shall be deemed to be and always to have been" validly made, taken or done. It was contended on behalf of Mr. M. Anwar that this was confined to the past and did not relate to futurity. Precisely this clause was interpreted in Phan Iftikharadin's c se (4), wherein the applicability of Martial Law Regulation No, 72 of the 1958 Martial Law was questioned on the ground that it covered only orders passed between 10th October, 1958 the date of Promulgation of the Laws (Continuance in Force) Order, 1958, and 29th July, 1958 the date on which the Regulation came into force. It was contended before their Lordships that the impugned order passed on the 8th May, 1968 could not have been made under Regulation 72 of 1958. Reliance was placed in this regard on the expression "for the time being used under section 1 of the Resolution" which it was argued, would refer only to the past and not to the future. Relying on the expression "shall have and shall be deemed always to have had effect accordingly.' used in the same context in section 1 of the Regulation, their Lordships observed :- `'The intention appears to be to protect all actions taken by the present regime under the Security of Pakistan Act." "Also, there are in section 1 of the Regulation words which point clearly to the applicability of the Act to orders passed in future. It says "shall have and shall be deemed always to have had effect accordingly". These words mean that even in future the provisions of the Security of
(1) 1952 A C 109 (2) PLD 1965 Lah. 445
(3) PLD 1970 SC 9 (4) PLD 1961 SC 585 ' Pakistan Act would have effect as if they were incorporated in this Regulation. Had it been the intention to protect only orders passed before the coming into force of the Regulation it would have been sufficient to say "shall be deemed always to have had effect accordingly".
267. I am thus, in no manner of doubt that the validation also covers further continuation of orders made, proceedings taken and sentences passed etc. Thus reading together the expression "purported exercise of powers and shall be deemed to be and always to have been" I am clearly of the views that widest scope has been conferred on the validity or orders made, proceedings taken, acts done and sentences passed, etc., and further the persons or authorities responsible have also been protected under the provisions next following as contained in sub-Article (3) of Article 281.
268. ' The position as it finally emerges from the foregoing discussion, therefore, is that even improper and illegal acts would also be protected under this blanket provision. However, if the intention of the Constituent Assembly had been to keep this field completely outside the jurisdiction of the Courts, it would not have made the significant omission to make a specific reference to that as was done under Article 281 (1). Thus, considering the two provisions together I am of the view that this Court would be competent to consider the validity of the acts in question from the point of view of coram non judice and mala fide inasmuch as it is preposterous to attribute to the chosen representatives of the people such want of circumstances muchless deliberate intention to legitimize actions dishonestly done with a mala fide intention. This position becomes further clear when Article 281 is read together with Article 295 reproduced earlier. In fact, Articles 280 and 295 of the present Constitution are very much similar to Articles 225 and 250 of the 1962 Constitution.
269. Article 250 of the 1962 Constitution incorporated as Article 295 of the present Constitution with a slight amendment is nothing but almost a verbatim reproduction of section 6 of the General Clauses Act dealing with the effect of repeal with no material difference in the phraseology employed. The adage that "history repeats itself" has come to be true in the case of our Constitutional History which has repeated itself in a short span of a decade. Presidential Order XXVI of 1982 saved by the 1962 Constitution is materially identical with Order XIV of 1972 which was promulgated by the present President to deal with pending matters. It was subjected to judicial scrutiny as we shall presently examine.
270. ' In support of his contention that all the validating provisions contained in Articles 280, 281 and 295 and Order XI of 1972 read together were good enough to cover even cases of mala fide, the learned Attorney-General argued firstly that the validation of provision had not been restricted by or made subject to qualifications of bona fide acts. Reliance was placed in this regard on Labour Federation of Pakistan and others v. Pakistan and another (1), Muhammad Umar Khan son of Ibrahim Khah of Mianwali v. The Crown (2) and Muhammad Khan v The Border Allotment Committee and others (3).
271. In answer to a question that under Article 295 (b) only such actions taken under the repealed laws were saved as were duly done or suffered under the law, reliance was placed on Lt.-Col. G. L.
272. Battacharya v. The State, etc. (4) which was a petition for Special Leave to Appeal
(1) PLD 1969 Lah. 188 (2) PLD 1953 Lah. 528
(3) PLD 1965 SC 623 (4) PLD 1964 SC 503 directed against the refusal of the Full Bench of the High Court to issue a writ of habeas corpus in favour of the appellant, an Indian national convicted by a Special Military Court under Martial Law Regulation No, 20, the Army Act, Control of Entries Act and the Official Secrets Act. The validity of the President's Order XXVI of 1962 was questioned which conferred continuous effect on sentences awarded to the appellant by the Special Military Court during the Martial Law regime. The order was made on 7-6-1962 only a day before the new Constitution of 1962 came into force. Article 225 of that Constitution inter alia repealed some of the martial law legislations while continued enforcement of some of them subject to alteration through amendment by an appropriate legislation. Repelling the argument it was observed by their Lordships as follows :- "Under subsection (1) of Article 225, all existing laws are to continue in force subject to the Constitution, so far as applicable, and it is clear that one of these laws is President's Order aforesaid. Indeed, even if that Order No, XXVI of 1962. Therefore, there can be no doubt of the effect of the sentence awarded to the prisoner being continued after the termination of Martial Law by virtue of the President's Order aforesaid. Indeed even if the Order had been repealed, by virtue of Article 250 such repeal would not 'affect the previous operation of the law or anything duly done or suffered under the law', and consequently, the sentence would continue in effect after the coming into force of the Constitution until it was served out, but as has been seen, President's Order No, XXVI of 1962, was never repealed and is still in force as law which was existing immediately before the Constitution came into force, and which has been continued in its effect by virtue of Article 225."
273. ' It was a case of trial by a Special Military Court in which minutes of confirmation had already been signed by the competent authority before the Constitution came not force, but the promulgation under rule 58 of the Rules framed under the Pakistan Army Act was still awaited. It was argued before their Lordships that in the circumstances the trial was still incomplete and pending. And could not be allowed to continue after the Special Military Courts had ceased to exist. Earlier their Lordships noticed the argument that until a sentence became valid by confirmation before the abolition of Special Military Court, no penalty or punishment could be deemed to have been incurred by the appellant and since the sentence had not been pronounced the appellant had incurred no liability in the form of executable sentence. It was observed :- "This contention appears to be sound that for this, we come to the conclusion that the penalty or punishment had been imposed, provision of Article 250 of the Constitution would not be attractive."
274. ' Having considered the relevant rules their Lordships came to the conclusion that the situation was analogous to that of conviction recorded by a Sessions Judge with an award of death sentence which was not executable unless it was confirmed by the High Court under section 374, Cr. P. C.
275. However, placing reliance on Presidential Order 26 of 1962 analogous to Presidential Order 14 of 1972, their Lordships then dismissed the petition. In the case Mir Ahmad Nawaz Khan Bughti v.
276. Superintendent District Jail Lyallpur and others (1) the vires of the Military Court sentence (Supplementary Provisions) Ordinance of 1962, giving retrospective effect to the
(1) P1.D1966SC3 orders of the Commander-in-Chief, were challenged on the ground that they were repugnant to Article 2 of the Constitution of 1962 which conferred on every citizen an inalienable right to enjoy the protection of law and to be treated in accordance with law. Prior to the promulgation of the Ordinance Commander-in-Chief had revoked the order passed by the Chief Martial Law Administrator whereby the sentence of the person convicted by Special Military Court was suspended. Consequently, the appellant was re-arrested and detained. It was with a view to validate this action of the Commander-in-Chief with retrospective effect that the Ordinance had been brought into existence. It was held by their Lordships that there was no bar to the Legislature to make such enactment. The distinction between retrospective legislation which affected the rights and liabilities of persons and that which did not do so was in their Lordships' opinion without foundation, all legislation affecting the rights and liabilities, the words being used in their widest sense, Legislature either creates a right or takes away a right or restricts or enlarges a right or similarly affects liabilities".
277. ' Their Lordships also repelled the argument based on the provision contained in Article 250 of the 1962 Constitution corresponding to Article 295 (b) of the present Constitution which saved inter alia things duly done or suffered under the law. It was observed by their Lordships- "Had Article 250 been confined to "anything duly done or suffered" under the law there may have been some force in the argument of learned counsel. However, Article 250 goes further and says that the repeal does not affect "the previous operation of the law" and it also does not affect "any penalty" incurred or any "right acquired" or liability incurred". A liability for detention for a particular period was incurred by the detenu on account of the Ordinance and that liability continues in spite of the repeal of the Ordinance. Also the validity which the order of the Commander-in-Chief acquired by the Ordinance is a "previous operation of the law and is not affected by the repeal of the Ordinance."
278. ' A more recent authority relevant for this purpose is Sona and another v. The State etc. (1). The facts of the case are that Deputy Commissioner, D.I. Khan vide his order dated 16-7-1963 convicted the appellant under section 302/34, P. P. C. Read with sections I 1 and 12 of the Frontier Crimes Regulation. Sentence was confirmed by the Commissioner, D.
1. Khan on 3-9-1963. Having unsuccessfully invoked the writ jurisdiction of the High Court the appellants filed an appeal by Special Leave to Appeal before the Supreme Court challenging their convictions inter alia on the ground that the Commissioner 0. I. Khan had no jurisdiction to confirm sentences on 3-9-1963 when the Frontier Crimes Regulation had already been repealed even before he took over as Commissioner D. I. Khan on 27-5-1963, by West Pakistan Criminal Law (Amendment) Act 7 of 1963. For removal of doubts provisions of section 4 of West Pakistan General Clauses Act, 1956 were specifically made applicable on the repeal of the Frontier Crimes Regulation under section 34 (2) of Act of 1963. Their Lordships look the view that in the circumstances the appellant's case which was still pending at the time of the Frontier Crimes Regulation was to be continued and completed as if Frontier Crimes Regulation had not been repealed and as such section 12 (2) of the Frontier Crimes Regulation could be deemed to be alive which conferred powers of confirmation on the Commissioner D. I. Khan.
(1) P I D 1970 SC 164 ' In PLD 1965 Lab. 102 (a Full Bench Authority), their Lordships repelled the contention that the repeal of the Martial Law Regulation automatically ended all proceedings pending thereunder as entirely devoid of substance. In that case their Lordships were dealing with the effect of repeal of certain regulations which had been categorised as existing laws under Article 220 of the Constitution. As stated earlier Article 250 of the 1962 Constitution is precisely in identical terms with Article 295 of the present Constitution except a minor addition in the latter provision whereby continuance of "bodies and authorities" constituted under the repealed law was saved. The relevant paragraph of that judgment reads as follows "11. Clause (c) of Article 250 which lays down that the repeal of a law by the Constitution shall not affect any liability incurred thereunder, is directly applicable to the cases before us. The moment an offence was committed during the Martial Law period against a Martial Law Regulation, the liability to punishment for that offence was incurred. To determine how far that liability can be enforced, however, it is necessary to examine the provisions of Regulation No, 61 and the Martial Law (Pending Proceedings and Protection) Order (President's Order No, 26 of 1962)."
279. ' In view of the above discussion, I am clearly of the view that the provisions contained in Articles 280, 281 and 295 and Order 14 of 1972 are unassailable and on that ground no exception can be taken to the conviction of the petitioners in Writ Petitions Nos. 223, 625, 627, 335, 404 and 403 of 1972. This, however, does not conclude the matter. While on the one hand in the interpretation of the validating provisions contained in Article 281(1) and (2) followed by the Indemnity provision contained in Article 281(3) 1 have conceded the widest amplitude in view of the use of the expression "purported exercise" and the "deeming" clause which would make it curative of all kinds of errors and omissions including illegalities, the provision contained in Article 29 (b) protecting the previous operation of the repealed law or anything duly done or suffered under the law apparently comes into conflict with the blanket provision contained in Article 281 curtailing and detracting from its scope. Thus, a reasonable and harmonious interpretation of the two seemingly conflicting provisions of the Constitution has to be discovered which is a point of considerable nicety and difficulty. It was laid down in Colonial Sugar Mills v. Irvin (1), that while provisions of statute dealing with matters of procedures may have retrospective effect, provisions which attached a right in existence at the time of passing of the statute will not be applied retrospectively in the absence of express enactment or necessary intendment. Such an express enactment is clearly available in the instant case in Article 281. In all fairness of the National Assembly functioning as Constituent Assembly the use of the expression ':anything duly done or suffered under the law" can by no means be characterised as a superfluity. Every word used by the legislature is presumed to have been designedly employed with a view to meet a particular kind of situation or serve a specific type of purpose. In the ordinary sense the word "due" is used to denote a debt, a legal charge or a duty. 'Due' means-belonging or allowing to somebody by right. 'Duly' means-'In proper manner, order and form', According to Oxford English Dictionary "due" would mean
(1) 1905 A C 369 that to which one has a right legal or moral-A payment legally due or obligatory-That which is due to be done as a matter of duty giving a right by just a title. "Duly" has been explained as done in a manner agreeable to obligation or propriety. According to the Stroud's Judicial Dictionary "Duly" means-The addition of the adverb "duly" to a verb will not, generally speaking, supply the omission of a material fact which ought to be stated, and which may or may not exist independently of that which is averred to be "duly" done, but it does signify that the action has been done legally in due course and according to the provisions of the law. This interpretation is based on Nightingale v.
280. Milcoxson (1), Dudlow v. Watcnorn (2). In order to arrive at a correct interpretation of Article 281(2) validating proceedings and Article 295(6) dealing with the repeal of law or anything done or suffered under it, the following points have to be kept in view:-
(1) Although the provisions contained in Article 281(2) dealing with the proceedings under Martial Law Legislation irrespective of its repeal or otherwise is all-embracing in its scope and application yet unlike proceeding contained in Article 281(1) it does not expressly oust the jurisdiction of Courts which would mean that the Courts can examine some aspects of the proceedings.
(2) According to the well-settled principles of interpretation, a just and reasonable and harmonious construction has to be placed on these seemingly conflicting provisions particulaly when even errors of omission and commission are apparently sought to be covered, which would call for a narrow and restricted construction.
(3) That while on the one hand provision contained in Article 295 dealing with the effect of repealed laws has kept alive inter alia all obligations, liabilities, penalty and punishment etc., it has at the same time saved only things duly done or suffered under the repealed laws which would mean that only such obligations, liabilities and punishments etc. Are to be saved which have been duly incurred or suffered under the law and not otherwise.
(4) The last point though not the least is that unlike Article 281(2) the provision in Artice 295 virtually incorporating section 6 of the General Clauses Act has been made subject to other provisions in the Constitution as indicated by the expression "except as otherwise provided in the Constitution". It would thus, appear that the blanket provision contained in Article 281(2) will prevail, Article 295 being subject to it.
281. ' It was in this view of the matter that the learned Attorney-General argued that once the validity of an act is conceded under the blanket provision whose scope has been enlarged to the maximum by the use of "purport exercise" and deeming clause, all such acts would be brought within the purview of "anything duly done or sufferred under the law". This interpretation is in consonance with the view taken by their Lordships of the Supreme Court in Mir Ahmad Nawaz Khan Bughti v.
282. Superintendent Jail, Lyallpur and others (3), referred to earlier. Their Lordships were interpreting Article 250 of the 1962 Constitution the relevant portion
(1) 10 B & C 202 (2) 16 East. 42 (3) PLD 1966 SC 357 of which having been already reproduced in the earlier part of the judgment reads as follows:- "Had Article 250 been confined to 'anything duly done or suffered' under the law there may have been some force in the argument of learned counsel. However, Article 250 goes further and says that the repeal does not affect 'the previous operation of the law' and it also does not affect 'any penalty' incurred or any 'right acquired' or 'liability incurred'. A liability for detention for a Particular period was incurred by the detenu on account of the Ordinance. Also the validity which the order of the Commanderin-Chief acquired by the Ordinance in a 'previous operation of the law' and is not affected by the repeal of the Ordinance."
283. ' As a result of the above discussion, I am of the view that no exception can be taken to the conviction of the petitioners on the basis of Article No, 295 of the Interim Constitution.
284. ' This brings us to the last ground of attack on the plea of malice and mala fide. As stated earlier, Mr. M. Anwar, learned counsel for the petitioners in Writ Petition No, 403 of 1972, whose arguments were also adopted by Mr. Khalid Ranjha learned counsel for the petitioners in Writ Petition No, 404 of 1972, contended before us that it was a farcical trial which was over within two hours, that the offending parts of the articles in question were neither read out to the accused-petitioners by the Members of the Military Court nor by any of the prosecution witnesses, that the indecent haste with which the trial was accelerated by alteration of the dates considered in the light of the fact that although charges were framed against Qureshi Brothers under Martial Law Regulations 16(a) and 89(1), in the alternative, their convictions were recorded, on both the counts, clearly shows that the Court was bent upon not only convicting the petitioners but also with an award of a substantial quantum of punishment. It was argued that even under the Army Act, this mock trial was not held even in accordance with the Army Act and the Rules framed thereunder, and was directly hit by Article 295(d) of the Interim Constitution. It was further submitted that the petitioners were not afforded an opportunity to adduce evidence in defence. They remained unrepresented by a counsel or a next friend.
285. ' In the foregoing discussion, 1 have already come to the conclusion that no exception could be taken to the retrospective validation of the Martial Law Legislation by a Constituent Assembly which was competent to pass Ex Post Facto Laws. Similarly, no fault could be found with the continuation of the pending proceedings under Martial Law Regulations 16(a) and 89, which have been since repealed, in view of the provisions contained in Article 295 of the Constitution.
286. Having discussed the seemingly conflicting provisions contained in Articles 281(2) and 295(b), I have already come to the conclusion that, placing a harmonious and equitable construction on them, this Court would be competent to consider the question of coram non judice, malice and mala fide notwithstanding the validation of the orders, proceedings, acts, sentences etc. Resorted to under the Martial Law Legislation inasmuch as it is inconceivable that the chosen representatives of the people having been elected for the first time on the basis of direct adult franchise should have condoned cases of complete and conspicuous want of jurisdiction or dishonest exercise of jurisdiction. Great sanctity attaches to the deliberations of the National Assembly functioning as the Constitue Assembly. It is equally difficult to swallow that the National Assemble should have considered it necessary to validate individual conviction c the plea of State necessity. In its wisdom the National Assembly d not oust the jurisdiction of the Courts in these matters which clear suggested that notwithstanding their validations, orders, proceedings, act sentences etc. Could still be examined by the Courts. In fact, the rath unique and unparalleled provision contained in Article 280(7) conferrir a good deal of latitude on the Courts in the matter of construction of ti Law with permission to read into it necessary adaptations so as to brir it in accord with the provisions of the Constitution would be strong suggestive that the ouster of the Courts' jurisdiction was only confined the validation of the laws themselves, and did not extend to the proceec ings taken thereunder.
287. ' It was contended on behalf of the Attorney-General supported the Advocate-General, that the use of the expression "Purported Exercise and the significant omission on the part of the Law Giver to qualil validation by bona fide acts clearly suggested that the Court had n jurisdiction in this regard. Reliance was placed in this regard o Muhammad Umar Khan v. Crown (1), The Punjab Province v. Malik Khizc Hayat Knan Tiwana (2), Mian Iftikharuddin etc. v. Muhammad Sarfra etc. (3), Government of Pakistan v. Akhlaque Hussain (4) and Labor Federation of Pakistan and others v.
288. Pakistan and another (5).
289. ' I now proceed to examine these authorities. In Muhammad Uma Khan v. Crown, the precise observation pressed into service reads a follows :- "It will be apparent from these provisions that the Ordinance vali dates not only acts and orders done in good faith for purpose o maintaining and restoring order but all sentences executed any orders of seizure or destruction of property made during the Mania Law period."
290. ' It may be observed in this context that, their Lordships were examining th provision contained in section 6 of the Indemnity Ordinance (XI of 1953 which reads as follows :- "All sentences passed through the Martial Law period by a Court or other Authority constituted or appointed under Martial Lai and acing under a Judicial capacity, shall be deemed to have bee lawfully passed, and all sentences executed according to the tenur thereof shall be deemed to have been lawfully executed."
291. ' A perusal of the aforesaid provision clearly reveals two points of distinction between that provision and the one contained in Article 281. I the former, there is no specific reference to "acting in a judicial capacity' and the tenor of the execution of the sentences. Even otherwise the met reference, inter alia, to the validation of acts and orders done in goo faith does not necessarily lead to the inference of the valdation of mala fid acts. Furthermore, the Indemnity Ordinance (II of 1953) did not spec: fiscally contain a provision analogous to that of any provision in section of the General Clauses Act which have been incorporated in Article 295(1
(1) PLD 1953 Lah. 528 (2) PLD 1956 FC 200
(3) PLD 1961 SC 585 (4) PLD 1965 SC 623
(5) PLD 1969 1,,ah. 188 the Interim Constitution. This brings us to the next authority Maulana 5dus Sattar Khan Niazi v.
292. Crown (1). This was a petition in the nature habeas corpus filed on behalf of Maulana Abdus Sattar Khan Niazi .o was convicted under section 124-A of the Pakistan Penal Code read Martial Law Regulation 8 and was sentenced to death on 7-5-1953. n 9-5-1953, Martial Law Indemnity Order No, 2 of 1953 came indorse. On 14-5-1963, the sentence was commuted by the Military authorities to that of fourteen years' rigorous imprisonment. Pending the edition under section 491 of the Criminal Procedure Code, Martial Law demnity Act No, 32 of 1953 came into force on 3-11-1953. Referring the expression "Acting in a Judicial capacity" as used in section 6 of the demnity Act, Muhammad Akram, J. Observed- "The expression `acting in a judicial capacity in section 6 of the Act is, to my mind, meant mainly to emphasize the duty of adjudication as distinguished from administration and meeting the requirements of Military exigencies. The word `exigencies' here is not without significance. One may be vested various capacities for exercising various kinds of functions. Judicial capacity describes only the character in which the work is to be performed." to other learned Judges, however, did not concur with this view of his rdership. It may be observed in this regard that the precise question mala fide was not under examination before their Lordships in this se, which was mainly confined only the wires of the Martial Law demnity Act, 1953. It is thus not quite relevant to the facts of the case before us. In Muhammad Nawaz v. Crown (2), Muhammad Nawaz, peti)ner, who was convicted under section 41 of the Indian Army Act lead ith section 302 of the Pakistan Penal Code by the General Court Martial r the murder of two Army Personnel and was sentenced to death, ught to chalienge the same before the Federal Court.
293. Muhammad kram, J., referring to several authorities and reports observed as flows .- "I think it may be fairly inferred that Courts Martial administering statutory Military Laws are Courts of Special Jurisdiction not amenable to supervision and control by any Judicial body or Court of Justice administering the General Law except where they may be found to have acted without jurisdiction or in excess of it." though, here, too, the precise question of mala fide was not before their gdships yet, in my humble view, the concluding observation of Muhammad kram, J. Could be construed in favour of this Court's interference in case of male fide. In Muhammad Khan v. Border Allotment Committee (3), e following observation by Hamoodur Rahman, J. As his Lordship then ts, was pessed into service on behalf of the Martial Law authorities and e Provincial Government :- "Having come to this conclusion, I do not think any useful purpose will be served by considering the line of argument advanced on behalf of the appellant as to the mala fides of the action on the part of the Allotment Committee or as to whether the impugned order had been made in accordance with provisions of the Regulation itself for if the jurisdiction of the High Court and this
(1) PLD 1954 SC 187 (2) PLD 1951 SC 73 (3-) PLD 1965 SC 623 Court has been validly ousted by the Regulation itself, these considerations cannot restore that jurisdiction.'
294. ' From the above, it appears, that once the ouster of the Courts is conceded, even a mala fide act would remain unchallengeable before the Court, It may be respectfully observed, firstly that in the case before us, we have not conceded the ouster of our jurisdiction, secondly that this view 01 his Lordship is not in consonance with the general tenor of the latest authorities on the point, and appears to have been subsequently modified Of course, earlier, as far back as 1918, a Full Bench of the Madras High Court in saamanthala Koti Reddi v. Poth .Ri Subhia and others. (1), after reviewing considerable case-law, came to the conclusion that purporte exercise without having been qualified by good faith was wide enougt to cover cases of malicious or mala fide exercise of jurisdiction. But the Laws of Evolution like any other field of human activity are equally applicable in the judicial field. Over the years we have felt the wind of change, and with the growing consciousness of civil liberties and rights, we have already noticed a shift from the views consistently taker for several decades in the matter of preventive detention, its amenability to judicial review, the change in the concept of Bountry of the State it regard to the remuneration of civil servants and the ever-increasini invocation of the principles of natural justice.
295. ' In Zafar Ahsan v. Republic of Pakistan (2) relied upon on behall of the petitioners it was observed by Muhammad Munir, C. J. As his Lordship then was :- "If an Appellate Authority is provided by the Statute, the omissior or irregularity alleged will be a matter for that Authority, and not, as rightly observed by the High Court, for a Court of law. 01 course where the proceedings are taken mala fide and the Statute is used merely as a cloak to cover an Act which, in fact, is no taken though it purports to have been taken under the Statute the orders will not, in accordance with a long line of decisions it England, and in this Sub-Continent, be treated as an order under the Statute. In the present case, the Screening Committee and the President both had jurisdiction in the matter, the appellant was amenable to the jurisdiction exercised, the jurisdiction was exercised on grounds mentioned in the Statute and the order made is within the terms of the Statute and it is not the, petitioner's case that the Committee acted mala fide and used the Statute for ai ulterior purpose."
296. ' In the case of Muhammad Ayub Khuro (3), it was observed by thei Lordships :- "It is incorrect if it is wrong in law or fact, it is void if it is pro nounced by an incompetent Tribunal."
297. ' Referring to the trial by a Special Judge who was not competent to take cognizance or try an offence of blackmarketing under Martial Lay Regulation No, 26 read with Martial Law Regulation No, 25 for which thi appellant was tried and convicted, it was observed by Muhammac Munir, C. J , as his Lordship then was as follows :- "It would, therefore, follow that Mirza Qamar Ali Beg was not com petent to take cognizance of or to try the offence if, as alleged bl
(I) AIR 1918 Mad. 1962 (2) PLD 1960 SC 113 (3) PLD 1960 SC 237 the Prosecution, the offence charged was distinguishable from an offence under the Hoarding and Blackmarket Order which, of course, he was competent to try. Thus, the entire proceedings before him were void in coram non judice."
298. ' In Government of West Pakista;z v. Begum. Agha Abdul Karim Shorish Kashmiri (1) Hamoodur Rahman, C. J. Observed as follows :- "But it has throughout without any exception whatsoever been always consistently held that a mala fide action is not action in accordance with law. Decisions are also not wanting to show . That very often the requirement of reasonableness has also been added to the requirement of faith.
299. Indeed it has even been said that the question of reasonableness would be pertinent in an enquiry as to mala fides. Thus, to determine as to whether the officer concerned really believed that facts existed which would bring the case within the statute and honestly intended to put the law into force, the reasonableness in the limited sense indicated in the case of Abdul Baqi Baluch would always be material. In other words when it is said that no reasonable person could have upon such and such material formed the opinion that the person detained had brought himself within the mischief of the statute, in effect the contention is that the officer concerned has, in these circumstances, acted mala fide in law, (1 make a distinction between mlla fide in fact or malice in fact and mala fide or malice in law). Thus, in the case Conn v. Clippertion (10 A & E 588) Denman, C.
300. J. Said : "I am unwilling to say that if a party acts bona fide as in the execution of a Statute, he is justified at all events merely because he thinks he is doing what the Statute authorities, if he has not some grounds in reason to connect his own act with the statutory provision". In liarmann v.
301. Seneschal (P. 13 C. V. N S 392) it was conceded that reasonable ground or belief was an important ingredient in ascertaining the existence of bona fide.
302. ' The real question, to my mind, in every case of mala fides is: Did the authority or officer concerned reasonably believes that his duty as such officer required him to act as he did ? A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the Statute justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the Statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner.
303. ' In view of this classic observation of his Lordship, I am left in no manner of doubt that in the absence of an express ouster of this Court's jurisdiction coupled with the provision contained in Article 295(0, this Court is fully competent to examine the questions of mala fide and coram non judice.
304. ' Before ccming to the factual aspect of the matter, I would like to consider the contentions raised by Mr. S. M. Zafar in the cases of Mukhtar Rana.
305. ' Unlike Mr. M. Anwar, Mr. S. M. Zafar did not insist on the 1962 (n PLD 1969 SC 33 Constitution being alive and kicking. On the other hand, he challenged the validity of Articles 280, 281 and 295 of the Interim Constitution on the ground that they were not in accord with the Legal Frame Work Order (No, 2 of 1970) which formed the basis of the new elections and as such was a Charter for the Constituent Assembly. It was argued that the repeal of the Legal Frame Work Order did not make the slightest difference inasmuch as this purpose had already been achieved. The precise contention was that the Legal Frame Work Order had, inter alia, guaranteed the independence of the Fundamental Rights of the People which have been sought to be taken away in Articles 139 and 279 of the Interim Constitution and seemingly the Courts' jurisdiction could not be taken away as expressly as provided in Article 281, could not be readily accepted. This contention hardly needs a serious consideration inasmuch the Legal Frame Work Order having been passed by a usurper was an illegitimate Statute and had to be validated only under the Doctrine of Necessity and is also concerned by the Supreme Court. Once the First General Elections had taken place in the country on the basis of direct adult franchise there would be hardly any justification to circumscribe its powers of Constitution making by the Legal Frame Work Order.
306. ' The ground of attack on the plea of Fundamental Rights was sought to be supported by an observation made by Muhammad Yaqub Ali, J., in the concluding portion of his Lordship's judgment earlier reproduced at page 29. Since Martial Law Regulation No, 78 has been repealed by the new Constitution. Despite validation of proceedings taken thereunder as envisaged by Article 281, his Lordship took the view that the order of detention passed thereunder had become void from the commencing date i,e, 24-1-1972 owing to their repugnancy to Fundamental Rights guaranteed in Article 9 of the present Constitution. It may be observed with the utmost respect that since the judgment of their Lordships was announced a day prior to the promulgation of the Interim Constitution in its final form, it was not possible for their Lordships to examine in detail all the relevant provisions contained therein. Articles 139 and 279 of the Constitution conferred on the President inter alia, unlimited powers to suspend Fundamental Rights by Presidential Order during Emergency. It also validated proclamation of Emergency issued on 23-11-1971 and ousted the jurisdiction of the Courts to question its validity. Article 279 conferred unlimited power on the President to amend the Constitution by a Presidential Order till 31 3-1973. Such an order could also be given retrospective effect till 20-2-1971. Soon 'after the promulgation of the new Constitution and also simultaneously with it the President issued an Order under Article 139 wherein it was provided inter alia "and whereas the aforesaid Proclamation of Emergency is in force; now therefore, in exercise of the powers conferred by the sub-clause (3) of Article 139 the President is pleased to declare that the right to move any Court for enforcement of the Fundamental Rights provided in Article 9 of the Constitution shall remain suspended for the period during which the said Proclamation is in force".
307. ' In view of the above situation it appears to me that the petitioners' detention could not be challenged on the ground of alleged infringement of Fundamental Rights. Learned counsel also relied in this regard on Golak Nath v. State of Punjab (I). In that case the constitutionality of
(I) AIR. 1967 SC 1643 the Punjab Security of Land Tenure Act X of 1953 and of Land Reforms Act of 1962 Mysore was challenged before the Supreme Court of India on the ground that they infringed the Fundamental Rights of the petitioner as guaranteed in Articles 14 and 19 of the Indian Constitution. The position taken by the States of Punjab and Mysore was that the Acts had been saved by the Constitution (19th Amendment) Act, 1964. It was contended before their Lordships that the Fundamental Rights being a part of the basic structure of the Constitution could not be destroyed by the Parliament in exercise of its amending power under Article 368. Conclusions arrived at by the Supreme Court of India briefly were that constitutional amendment "or law" if it took away or abridged the Fundamental Rights conferred by the Constitution was void .To that extent. Though the scope of the Fundamental Rights was abridged by the first, fourth and seventeenth amendments of the Constitution, yet their validity was allowed to remain intact on the principle of stair decisis. This finding was, however, confined to future operation on the Doctrine of "prospective overruling"., It may be observed in this context that one of the conclusions arrived at by Hydatullah, J.. Namely that for abridging or taking away Fundamental Rights a Constituent Body was to be convoked, is directly relevant to the situation before us. The relevant provisions of the Interim Constitution sought to be interpretted by us are constitutional provisions inserted in the Interim Constitution by the National Assembly functioning as Constituent Assembly of the Country. In the circumstances, therefore, the aforesaid authority of the Supreme Court of India is of no avail to the petitioners.
308. ' Relying on the omission of any specific reference that the ouster of the Courts jurisdiction under Article 281 (2) unlike the preceding provision contained in Article 281 (1), Mr. S. M. Zafar contended that this Court was competent to consider all orders, meetings, proceedings taken, acts done, sentences passed from the point of view of malice and coram non judice. Reference was also made by him in this regard to the full confidence reposed by the Constituent Assembly in the discretion of the Court in the matter of interpretation of the constitutional provision as clearly envisaged in Article 280 (7). This position has already been conceded by us.
309. ' It was next contended that in Writ Petitions Nos. 223 of 1972 and 335 of 1972 the sentences of Mukhtar Rana and Muhammad Riaz Shahid had not yet been written and signed by the Special Military Court and as such could not be confirmed under para. 4 of the Presidential Order No, 14 of 1972. It was argued that since confirmation was not complete until promulgation, which could only be done by the defunct-Military Court, it was no longer possible and as such the case may be deemed to be still pending to be tried by an Ordinary Criminal Court. The factual position appears to be as stated by the learned Advocate-General that the sentence was pending confirmation.
310. ' In view of the Supreme Court judgment in ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan (1) which is directly attracted to the facts and circumstances of the case before us, the cause could still be deemed to be pending in terms of the President's Order No, 14 of 1972, which was analogous to President's Order No, 26 of 1962 under examination before their Lordships.
311. Identically with the case before us
(1) PLD 1969 SC 174 an argument was raised before their Lordships on the basis of rule 58 of the Pakistan Army Act Rules which provided that confirmation was not complete until promulgation had been affected and the finding and the sentence could not be held to be confirmed until they had been promulgated under section 119 of the Pakistan Army Act Rules. No finding or sentence of a General, District or Field General Court Martial shall be valid except in so far as it may be confirmed as provided in this Act. Section 120 provided that the finding and sentence of a General Court Martial may be confirmed by the Commander-in-Chief or by an Officer empowered' in this behalf by warrant of the Commander-in-Chief. Although in the case before their Lordships the Minutes of Confirmation had been signed before the 1962 Constitution came into force yet promulgation which constituted an essential element of confirmation had not yet taken place. It was argued before their Lordships that since the Special Military Court had ceased to exist the appellants may be tried by an Ordinary Court. Relying on President's Order No, 26 of 1962 which contained a provision similar to the one contained in para 4 of the President's Order No, 14 of 1972, their Lordships dismissed the petition. The relevant points may be advantageously reproduced- "The. Contention of the learned counsel appearing for the appellant is that the result of this is that there is neither any conviction nor acquittal and, therefore, the trial is still incomplete, and now that the Special Military Court has ceased to exist the appellant must be tried either by a Court Martial under the Pakistan Army Act or by an ordinary criminal Court. But it appears to us that in making this argument the learned counsel has ignored the provisions of the President's Order No, 26 of 1962 and Ordinance No, LXXII of 1962. These orders were made before the Constitution came into force to provide for cases which were still pending disposal before the Martial Law Authorities as also for cases where sentences of death or transportation passed by the Special Military Courts were pending for confirmation immediately before the Commencing Day. These would clearly seem to contemplate that the Authorities themselves were conscious of the fact that there may be cases in which such sentences were pending confirmation and, therefore, it was expressly provided by Ordinance No, LXXII of 1962 that where a sentence of death or transportation passed by a Special Military Court is pending for confirmation immediately before the Commencing Day. The proceedings relating thereto shall be submitted to the Commander-in-Chief who may either confirm the sentence or make such order in respect thereof as he thinks fit."
312. ' But, as stated earlier, strong allegations of malice and mala fide were levelled by Mukhtar Rana petitioner right from the outset in his retition for anticipatory bail (Cr. Misc. No, 330 of 1972) in the first instance and subsequently reiterated in Writ Petition No 223 of 1972. Having perused the F.I.R. In that case, which was originally registered under section 307 of the Pakistan Penal Code, and, later, on the death of Mian Abdul Khaliq, deceased, was converted to one under section 302 of the Pakistan Penal Code I found, that in the initial report lodged by none else than Abdul Rahim, a cousin and partner of the deceased, the petitioner was neither mentioned as an accused nor as an abettor. In fact, from the elaborate account of the incident given therein I could not avoid an impression that the deceased was assaulted by some Disgruntled Workers of the Mills who had their differences with him as also with some other pro-Management workers. The name of the petitioner did not figure anywhere. Vide my order dated 17-2-1972 I allowed anticipatory bail to the petitioner and issued notice to the State for 21-2-1972 when 1 was informed that Martial Law Regulation No, 16(a) had also been invoked in this case and as such I had no jurisdiction. In order to satisfy myself I had a cursory glance through the Police file and found, firstly, that Martial Law Regulation No, I6-A had not been added in the F.I.R. But had been subsequently invoked on the basis of some general allegations of making intlamatory speeches with no reference to a proximate link or connection between the speeches and the murder. Even otherwise, apart from the conspicuous absence of any nexus between an alleged speech and the murder of Mian Abdul Khaliq, Martial Law Regulation 16 (a) is not analogous to sections 34 and 149 of the Pakistan Penal Code based on doctrine of constructive liability and providing for punishment therefor but constitutes a substantive offence independently punishable as would be evidenced from the relevant provision : MARTIAL LAW REGULATION 16 "Punishment for committing any act or speech prejudicial to the good order or public safety.-No person shall commit any act or be guilty of an omission or make a speech :
(a) which is to the prejudice of the good order of the public safety.
(b) Maximum punishment : 14 years' R.I."
313. ' And, yet, strangely enough, it was invoked alongwith section 302 of the Pakistan Penal Code. It appears that almost simultaneously with this a Special Military Court was also constituted by the Zonal Martial Law Administrator, Zone-C, for the trial of the case. All this considered in the light of the fact that at the very outset direct allegations of malice which had been levelled by the petitioner against the leadership of the party in power, to which he also belonged in the first instance, and, allegedly, fell from grace after the elections coupled with the fact that soon after his involvement in this case yet another case under Martial Law Regulation No, 16 (a) was registered against him resulting in his conviction, which is the subject-matter of Writ Petition No, 625 of 1972, the consequential vacation of his seat, challenged in Writ Petition 627 of 1972 and the bye-elections which have already been held; leads to the inevitable conclusion that this is a case of malicious prosecution initiated and held with a mala fide intention. Accordingly, on that ground alone, the conviction cannot be allowed to stand. I, therefore, set aside the conviction, and direct that he may be tried by an Ordinary Criminal Court, with no order as to costs.
314. ' The position in Writ Petition No, 625 of 1972 is, however, quite distinguishable. A separate case under section 16(a) incorporating a subsequent speech made by Mr. Mukhtar Rana was registered against him. He was convicted by a Special Military Court with an award of five years rigorous imprisonment and is now undergoing a sentence. No material has been brought are the record to justify an inference of mala fide which alone could take out his case out of the extended scope of validation conferred by Article 281 (2). In the circumstances, therefore, no exception can be taken to his conviction which is a matter past and closed. Accordingly, the petition is dismissed.
315. ' Writ Petition No, 627 of 1972 is, however, kept pending on the request of the learned counsel who sought permission to amend the same so as to implead the newly-elected Member as one of the respondents.
316. ' As regards Writ Petition No, 335/1972 filed by Muhammad Riaz Shahid the co-accused of Mukhtar Rana in the murder case the position is precisely identical. Accordingly this petition is also allowed with the direction that the case may be deemed to be pending before an Ordinary Criminal Court which shall proceed with the trial in accordance with law.
317. ' The facts of the two cases of the journalists are detailed in the earlier part of the judgment. In order to seek clarification of certain aspects of the matter it was considered expedient in the interest of justice to examine the Investigating Officer and the Major who presided over the Summary Military Court which convicted the Qureshi Brothers and Mr. Mujibur Rehman Shami, which has been challenged in Writ Petition No, 403, and Mr. Muzaffar Qadir and Hussain Naqi, which is the subject-matter of Writ Petition No, 404 in their written statement particularly when the respondents expressed their inability to furnish any information on the factual plane. Allegations of acceleration of the dates of the cases were not denied by the respondents and the only explanation offered in this regard was that this was necessitated on account of general instructions issued by the Martial Law authorities that all pending cases before Military Court should be expeditiously disposed of so that the officers functioning as Military Courts should be able to go back to their respective units. Inspector Ghulam Rabbani of C.I.A. Staff and Deputy Superintendent of Police Sultan Ghani, who were associated with the investigation of the cases, appeared before me, on 17-5-1972, when only the former was examined. His statement, in substance, was that the case against the detenus was registered on 5-4-1972, vide First Information Report No, 41, at Police Station Mozang, Lahore. Altaf Hussain and Ijaz Hussain were arrested the same day by Deputy Superintendent of Police Sultan Ghani, Police Station Anarkali, Lahore. They were brought to Police Station Civil Lines at 11-30 p. m. Hussain Naqi was arrested by Deputy Superintendent of Police Rehmat Ullah of Police Station Anarkali the same night and was also brought to Police Station Civil Lines. On the following morning, Deputy Superintendent of Police Sultan Ghani arrested Mujibur Rehman Shami, Muzaffar Qadir was arrested in the early hours of the following morning, while Mujibur Rehman was arrested at about 12-15 noon. They were also kept at Police Station Civil Lines. On 6-4-1972, they were produced by him before a Major in the 'Peoples' who allowed remand till 18-4-1972 when they were produced before the President, Summary Military Court. The case of Ijaz Hussain and Altaf Hussain was adjourned to the next day viz. 11-4- 1972, and then adjourned to 14-4-1972, while that of Muzaffar Qadir and Hussain Naqi was adjourned to 13 4-1972, and that of Ijaz Hussain Qureshi and Mubjbur Rehman Shami to 15-4-1972.
318. On 13-4-1972 also the case of Muzaffar Qadir and Hussain Naqi was also adjourned when Muzaffar Qadir and Hussain Naqi were produced before the Summary Military Court. The President of the Court directed him (Inspector) also to produce before him the detenus whose cases had been fixed for 14 and 15-4-1972. In compliance with this the accused, in these two cases, were also produced before the Court which disposed of all the three matters by separate orders of conviction after recording statements of three witnesses in each case. All the same three witnesses in each case, namely, Inspector Ghulam Rabbani, D.S.P. Sultan Ghani and Mr. Mujtaba Hasan Clerk, Press Branch Civil Secretariat, Lahore, who was a formal witness having produced a declaration forms pertaining to URDU DIGEST, ZINDGI and PUNJAB PUNCH, placed on the record the relevant entries of the Roznamcha pertaining to the arrest, detention and production before the Summary Military Court. As stated earlier, the accused in the three cases challenged the jurisdiction of the Court to try them in their statements submitted in writing. They refused to lead evidence in defence except that at the outset they submitted written statements, copies of which were forwarded to Deputy Assistant Adjutant General Zone-C.
319. ' Maj. Khalid Mahmood who presided over the Summary Military Court was examined by the Full Bench on 5-6-1972. He stated that since, on 10-4-1972, he had not taken the oath, therefore, he adjourned the `Urdu Digest' case to 11-4-1972 when prosecution evidence was recorded. The accused refused to participate in the trial and did not cross-examine the witnesses. He stated that although hearing of the Urdu Digest case concluded on 11-4-1972 in deference to the Court's Hope and Desire Order, he withheld the promulgation of his judgment and adjourned the case to 14-4- 1972. The trial of the Punjab Punch case concluded on 13-4-1972 for which it had been originally fixed. He, however, admitted having accelerated the hearing of the Zindgi case which was brought from 15-4-1972 to 13-4-1972 in anticipation of a similar attitude of non-participation of the accused as it had happened in other cases. He frankly admitted that he had received no instructions from the Martial Law authorities for the expeditious disposal of pending cases. He explained that Mujibur Rehman Shami was directed by him to read out his written statement in Court and also cross- examine one of the prosecution witnesses under protest. He added that he had directed the accused in all the three cases to have a friend but they declined to do so. He stated that the order of remand dated 6-4-1972 was not in his hand but was passed by some other Officer. He submitted that he recorded no evidence as to the character, previous conviction etc. Of the accused inasmuch as, according to him, the relevant forms prescribed in that regard under rule 53 of Pak Army Act/ Rules were applicable only to Army Personnel, and, further, that he presumed all of the accused to be of good character. He admitted that although the charges in all the three cases were on two counts that is under Martial Law Regulation 89(1)(c) and Martial Law Regulation 89(1)(c) and the charge under Martial Law Regulation 16(a) in all the cases, was in the alternative yet he had erroneously convicted the accused on all the three charges. He admitted that he had not recorded any reason for expediting the dates of hearing. Nor did he, for that matter, keep a memorandum of the proceedings In answer to a queston he replied: "I cannot say whether the procedure adopted by me was in accordance with the "Rules". He added that he had no information of the fresh order of the Court dated 12-4-1972 extending the operation of the earlier order dated 10-4-1972 wherein a Hope and Desire had been expressed that the Special Military Court will not pass a final order.
320. ' The facts of Writ Petition No, 404 of 1972 filed by Mrs. Shamini Qadir challenging the conviction of her husband Mr. Muzaffar Qadir and Mr. Hussain Naqi have already been set out in the earlier part of the judgment. Although the fact that Mr. Muzaffar Qadir was the Printer of the Weekly Punjab Punch was denied by Mr. Khalid Ranjha learned counsel for the petitioner yet it appears to have been conceded by Mr. Muzaffar Qadir himself before the Summary Military Court as indicated by a note in that regard. The present petition, which was filed on 7-4-1972, in the nature of Habeas Corpus came up for hearing before the Court on 10-4-1972, and was adjourned when, instead of staying the proceedings before the Summary Military Court, a Hope and Desire Order was passed.
321. The accused were, however, convicted on 13-4-1972 and the Majority Order of the High Court's order dated 17-4-1972 suspending the rigorous part of the sentence and the recovery of fine, was suspended by the Supreme Court on 19-4-1972.
322. Doctor Khalid Ranjha learned counsel for the petitioner contended before us that before the enforcement of the Interim Constitution the petitioners were entitled to liberty in view of the Supreme Court's judgment, that the validity of the provisions contained in Articles 280, 281 and 295 of the Interim Constitution were liable to be struck down on the two-fold ground of being repugnant to Grund Norm as also to the Legal Frame Work Order. Contrary to the position taken up by Mr. M. Anwar, Doctor Khalid Ranjha contended that the Constituent Assembly had no power to have a recourse to subordinate legislation, and, in any case, it could not have been enacted with retrospective effect.
323. ' Lastly, a plea of mala fide was raised. In the earlier part of the judgment we have already examined most of these contentions which were not raised before us for the first time and would, however, presently advert to the last contention raised on the plea of mala fide.
324. ' Having considered the time, mode and circumstances of the trial in the three cases, I am clearly of the view that they were merely farcical and mock trials. I am saying this with full consciousness of the fact that irregularities and even illegalities in that regard would be condonable under the extended scope of "purported exercise" and the deeming provision contained in Articles 181(2) and 195.
325. ' My reasons are as follows:-
1. Firstly, that on 10-4-1972, Maj. Khalid Mahmood took cognizance of the cases, without taking oath of office in the first instance as evidenced by the fact that he directed written statements submitted by the accused before him to be sent to the Daag and then adjourned the cases. His plea that the accused had not yet been formally arraigned before him appears to have no force.
326. My interpretation of the rules 32, 33 and 36 of the Pakistan Army Act/Rules read together is that as soon as the Court is satisfied as to its legal constitution in terms of rule 32 it should proceed to enquire as to the amenability of the accused to the Court's jurisdiction and validity of charge in terms of rule 33 which reads as follows:- "R.
33. Inquiry by Court as to amenability of accused and validity of charge.-(1) The Court, when satisfied on the matters set out in sub-rules (1) and (2) of the preceding rule, shall satisfy themselves in respect of each charge about to be brought before them,-
(i) that it appears to be laid against a person subject to the Act, and to the jurisdiction of the Court, and
(ii) that each charge discloses an offence under the Act and is framed in accordance with these rules, and is so explicit as to enable the accused readily to understand what he has to answer.
(2) The Court, if not satisfied on the matters set out in sub-rule (1), shall report their opinion to the convening authority and may adjourn for that purpose."
327. ' This obviously is an important judicial function which the Military Court is called upon to perform at a preliminary stage of the trial requiring application of mind to the facts and circumstances of the case, the nature of allegations, the evidence available and the charge framed etc. And as such being very much a part of the trial it cannot be resorted to without administering the oath of office which under section 106 of the Pakistan Army Act read with rule 36 of the relevant rules. Great sanctity attaches to an oath or affirmation, which is solemn pledge before God Almighty to do justice without fear or favour, and despite the confirmation of validation of widest scope and extent by Article 281(2) of the Constitution curative of irregularities or even illegalities this omission of a fundamental nature going to the root of the validity of the constitution of the Court cannot be condoned on that pretext. But even if the view taken by Maj. Khalid Mahmood may be deemed to be correct being apparently in accord with the letter of the law, those are on other important considerations which equally militate against the validity of the trial.
2. Apart from the formal statements of Mr. Mujtaba Hasan, a Clerk of the Press Branch Civil Secretariat, who produced the declaration forms of the two Magazines, namely, the Urdu Digest and the weekly, Zindgi and of Deputy Superintendent of Police Sultan Ghani who supervised the investigation, the only relevant evidence is that of Inspector Ghulam Rabbani the Investigating Officer who merely placed on the record the impugned portions of the publications.
3. In all these cases having refused to submit to the jurisdiction of the Court in their written statements, all the accused had raised what may be technically characterized as a special plea to the jurisdiction in terms of rule 41 of the Pakistan Army Act Rules, and yet it was not considered and characterized as such.
4. The indecent haste with which the accused were suddenly hustled into the Court, tried and convicted notwithstanding the admitted communication of this Court's Hope and Desire Order dated 10-4-1972 would strongly suggest that the Summary Military Court was pre-determined to convict them, and confront this Court with a fait accompli. Speaking for myself I was not impressed by the explanation offered by Maj. Khalid Mahmood that he had declined to finalize the proceedings in deference to the Court's order dated 10-4-1972 in the first instance but, subsequently, no such order was communicated to him. In the first instance, a major Constitutional battle had just canculded in Lahore before their Lordships of the Supreme Court wherein the very basis of assumption of power by General Agha Muhammad Yahya Khan and his Martial Law legislation was under challenge. The case which was being argued by the most eminent lawyers of the country had attracted the widest publicity both within and out of Pakistan. It was on the basis of the Supreme Court's admitting order in Miss Asima Jilani's case wherein the promulgation of Martial Law itself was challenged, that all the cases pending before us were primarily admitted. The proceedings before us were also regularly reported in the Press and quite prominently too. In the circumstances, it is inconceivable that the Summary Military Court had no knowledge that we had expressed Hope and Desire for withholding the final order. What really lets the cat out of the bag and lends strong support to allegations of malice and mala fide is the admitted fact of acceleration of the hearing of the cases of Urdu Digest/Zindgi from 14-4-1972 and 15-4-1972 respectively for which they were originally fixed, to 13-4-1972. The explanation offered by Maj. Khalid Mahmood in this regard that anticipating a similar attitude of non-cooperation from the accused he considered it expedient to dispose of all the cases simultaneously, is far from convincing. There appears to be no warrant, under the law, for such a change in the schedule of an important trial where the accused were charged with serious offence nor has any special urgency been shown to our satisfaction.
328. ' Inspector Ghulam Rabbani stated before us that when he produced Mr. Muzaffar Qadir and Hussain Naqi before the Summary Military Court, on 13-4-1972, the President directed him to produce the detenus in the other two cases fixed for 14/15-4-1972. This order of the President was communicated by him to the Emergency Staff, Civil Lines Police Station, on the telephone in compliance with which the detenus were produced in Court the same day. There can thus be no doubt that at least Ijaz Hussain Qureshi and Altaf Hussain Qureshi detenus in the Zindgi case, and Mr. Muzatfar Qadir and Hussain Naqi detenus in the Punjab Punch case were taken by surprise and summoned before the Court at the shortest notice with no opportunity to enlist the assistance of a friend or a counsel. The serious prejudice thus caused to them cannot be condoned on the pretext that, right from the outset, they had refused to accept the jurisdiction of the Court and participate in the trial.
329. ' A perusal of the Objectionable Articles and in particular specific portions thereof, clearly shows that the accused in the Urdu Dige t, Zindgi and Punjab Punch cases were highly critical of the political views, policies and programmes of President Zulfiqar Ali Bhutto and as such had fallen foul of the administration. No evidence regarding the previous good conduct of the accused, their status in life etc. Which were relevant considerations as envisaged under Rule 53 of the Pakistan Army Act Rules for the determination of sentence was recorded on conviction.
330. ' Reference may also be made to a frank admission made by Maj. Khalid Mahmood before us that he could not say whether the trial had been conducted in accordance with the Rules.
331. ' It may be next observed in this context, that specific allegations levelled by the petitioners that the Objectionable Portions of the Impugned Articles could not be real out to them in detail owing to the inability of the Inspector or the Court to correctly read the rather sophisticated language of advanced Urdu in which they were couched. These allegations are supported, by an affidavit have not been controverted by a counter-affidavit. Even otherwise having regard to the large number of long passages contained in an equally large number of Articles purported to have been read out to the accused in the course of their trials, in that short span of time, is something which cannot be readily accepted and has to be taken with a grain of salt.
332. ' Although in view of the wide scope of validation extended to the maximum limit by the Rule of Purported Exercise of and Deeming Clause, illegalities could be condoned yet having regard to the undeniable facts of the case, which are highly suggestive of malice, in my humble view, it would not be possible to uphold the convictions of such mock trials. Accordingly I set aside the convictions and quash the proceedings in all the three trials, with no order as to costs.
333. ' Before parting with these cases, I would like to observe that while, prima facie, the criticism of President Zulfiqar Ali Bhutto and his Government offered in Zindgi and Urdu Digest though expressed in a forceful and vigorous style does not smack of personal animus and is by and large confined to official acts and policies, on the other hand it is difficult to avoid an impression to the contrary in the case of Punjab Punch, which appears to have completely turned its back to the Code of Journalistic Ethics. I very much doubt if the use of such a vain and strain as runs through most of their writings even though motivated by sincerest considerations of patriotism and national interest can be justified by any standards. Most of the Articles apparently contain scurrilous personal attacks on the President couched in intemperate and even obscene language at times verging on pornography. No doubt, in Islam, even the highest in the land, is not immune from criticism yet it has to be kept within proper and reasonable limits so as not to give a licence to every disgruntled person to scandalize the President who if not more is at least entitled to as much legal protection against defamation as any other citizen of the State. The highly flavoured and piquant expressions often employed by sensation-mongering section of the Press to attract public attention and feed baser instincts though speaks, of the rather doubtful literary merit of the writing it certainly tends to offend against the law by giving a highly coloured version of the facts.
334. ' Before conclusion it may be observed that after arguments were over on 6th of June, 1972, the Full Bench tentatively decided to pronounce the judgment on or about the 1st of July, 1972. In the meantime petitioners in Writ Petitions No, 403, 404 and 198 of 1972 were released by the Government on 28-6-1972. A perusal of the relevant order which was sent to this Court shows that it was not a case of pardon but of remission of the unexpired portion of their sentences. This by no means renders the petitions infructuous which even otherwise involved determination of important constitutional issues.
335. ' Lastly, it may be observed that although before pronouncement of judgment the Full Bench held discussions in which I had the privilege to participate, but rather unaccountably I could not have the benefit of the perusal of the judgment proposed to be delivered by my learned brother A. R.
336. Sheikh, J., the senior most member of the Bench, which would have at least enabled me to obviate avoidable repetition of facts, and thus, condense my judgment which I submit with apologies has become much too voluminous.
337. ' K. E. CHAUHAN, J.-The facts of the cases in which the present judgment is being rendered have been given in detail by my learned brother Muhammad Afzal Cheema, J. And I need not reiterate them at this stage though I would revert to them in the later part of this judgment at appropriate places in their relevant context. Without, therefore, wasting time in re-introducing the facts I straightaway proceed to give my own views in respect of the various pleas which were raised before us.
2. The first point argued by the learned counsel for the petitioners was that according to the judgment of the Supreme Court in Miss Asma Jilani v. The Government of the Punjab and another
(1) the Constitution which was de jure in force in the Country on 20th April, 1972, when the Supreme Court announced its judgment, was the late Constitution of 1962. If any change was to be made in the Constitutional pattern of the Country, by the
(1) PLD 1972 SC 139 present National Assembly, he submitted, the same should have been brought out in the manner provided for in the 1962 Constitution, namely, by making necessary amendments therein according to the procedure laid down in its Part XI Articles 208 to 210. According to the learned counsel in that eventuality, the process employed would have been of amendment and not of any abrogation of the late Constitution, which the present National Assembly has done by validating inter alia the proclamation of Agha Muhammad Yahya Khan, dated 25th March, 1969 which the Supreme Court had struck down as invalid both from the point of view of legal competency of Agha Muhammad Yahya Khan (whom they held as "Usurper of Power") or the "doctrine of necessity", in view of the overall situation prevalent in the Country. The contention, in my humble opinion, has no force and my reasons for so holding are as follows
(a) There was a marked difference between the position of Agha Muhammad Yahya Khan and the present National Assembly. Agha Muhammad Yahya Khan has been held as a usurper who had without lawful authority arrogated to himself the Office of the President of the Country and the Chief Martial Law Administrator, whereas the present National Assembly consists of the representatives of the people of Pakistan who took part in the first ever-held general elections in the Country on the basis of adult franchise with a clear mandate that the said representatives will (and will have to) frame a Constitution for the Islamic Republic of Pakistan. The mandate given by the people of Pakistan in the peculiar circumstances prevalent in the Country cannot be subjected to any procedural or technical formalities to start with. So long as the basic task performed by the representatives of the people was within the mandate given to them by the people, their act of framing a Constitution cannot be taken exception to merely on the ground that they should have framed a Constitution only by making amendments in the earlier Constitution.
(b) No doubt, the late Constitution of 1962, as pointed out by Hamood-ur-Rahman, C. J., in Miss Asima Jilani's case at page 161 and by Muhammad Yaqub Ali, J., at page 220 had by and large been accepted by the people but while giving a picture of the constitutional mishaps which had befallen Pakistan off and on, Muhammad Yaqub Ali, J., on page 220 wrote as follows :- "In early 1965, Muhammad Ayub Khan was re-elected as President. The general impression in the Country was that the election was rigged. Towards the end of 1968, an agitation started against his despotic rule and the undemocratic Constitution which he had imposed on the Country. The agitation gathered momentum every day and was accompanied by widespread disturbances throughout the Country. In February 1969, Muhammad Ayub Khan called a Round-Table Conference of political leaders for resolving the political issues which had led to the disturbances.
338. A solution was near in sight when all of a sudden Muhammad Ayub Khan decided to relinquish the Office of the President and asked the Defence Forces to step in as it was 'beyond the capacity of the Civil Government to deal with the present complex situation'."
339. ' Earlier, on page 219, after making mention of the effect of some Constitutional cases, the learned Judge held :- "The judgments in the cases of Maulvi Tamiz-ud-Din Khan, Governor-General Reference 1 of 1955 and The State v. Dosso had profound effect on the constitutional developments in Pakistan. As a commentator has remarked, a perfectly good country was made into a laughing stock. A country which came into being with a written Constitution providing for a parliamentary form of Government with distribution of State power between the Executive, Legislature, and the Judiciary, was soon converted into an autocracy and eventually degenerated into military dictatorship. From now onwards people who were the recipients of delegated sovereignty from the Almighty, ceased to have any share in the exercise of the State powers. An all omnipotent sovereign now ruled over the people in similar manner as the alien commander of the army who has conquered a country and his 'will' alone regulating the conduct and behaviour of the subjugated populace."
340. Justice Muhammad Yaqub Ali, as will be evident from the passages reproduced above (to excuse repetition), has called the rule of Muhammad Ayub Khan as "despotic rule" and the Constitution given by him a "undemocratic Constitution which he had imposed on the Country". H has also held that atter Dosso's case onward, the people who were the recipients of delegated sovereignty from the Almighty ceased to have any share in the exercise of the State powers and an all omnipotent sovereign now ruled over the people in similar manner as the alien Commander of the army who had conquerred a Country and his 'will' alone regulates the conduct and behaviour of the subjugated populace. In this background, if we examine the position, it will be evident that when the present regime came into power it did not do so as a recipient of the power either from Agha Muhammad Yahya Khan or his predecessor Muhammad Ayub Khan. This regime was based on or flowed from the will of the chosen representatives of the people and in this respect even the invalidity of the Legal Frame Work Order (P.
0. Order No, 2 of 1970) did not affect the legality of the elections held under it to the National and Provincial Assemblies. Actually, the process employed by the people to regain the inherent right to govern themselves by a democratic Constitution of their own, neither flowed from the late Constitution of 1962 nor from the Legal Frame Work Order. This was their basic inherent right flowing from the grund norm, which in the case of Pakistan, already existed in the form of Objectives Resolution, dated 7th March, 1949, as held by Hamood-ur-Rahman, C. J., at page 182. The people of Pakistan, while exercising this inherent and fundamental right in the peculiar situation, prevalent in the Country, were, therefore, not bound by the procedural techniques contained in the undemocratic Constitution of Muhammad Ayub Khan against which they had staged a successful agitation which compelled him to quit the Office of the President. Thereafter, to argue or to insist that the chosen representatives of the people who had emerged as a result of the countrywide elections, would not be at liberty to frame a Constitution for their Country and were bound by the old rigid procedural rules is a negation of the trusteeship of the sovereignty of Almighty whereunder, they were competent to frame a Constitution for the people of Pakistan.
(c) It appears to me that the argument of the learned counsel, to state with respect, suffers from an inherent defect. If the competency of the chosen representatives of the people in view of the situation, at which the Country had reached, to frame a Constitution, is beyond doubt, then to bind them down with any procedural shackles in that respect is not justified
(1) PLD 1972 SC 139 and will be nugatory of the principle that an otherwise competent and sovereign National and Constituent Assembly is not sovereign in procedural matters when it embarks upon the task of framing a Constitution for the Country. It was open to the chosen representatives to frame a new Constitution by inserting amendments in the late Constitution of 1962 or to frame it afresh. Merely because it chose one procedure or the other does not detract from the competency and authority of the chosen representatives -to give a Constitution unto themselves or to the country. At this stage, I am posing a question and that is, was the present National Assembly the creation of the Late Constitution of 1962 of Muhammad Ayub Khan and were its powers, rights, privileges and obligations to be found in the relevant Articles of Ayub's Constitution ? Leaving aside the shackles of grund norm (or the Objectives Resolutions), was it not Sovereign Body, uncontrolled with unlimited powers ? If the answer is in the affirmative, then it is a sufficient reply to the objection which is being raised by the learned counsel for the petitioners. As a matter of fact, the learned counsel could not take his arguments to any logical end, because ; when he was asked that if he insisted on the strictness of the manner of the amendment of the late Constitution of 1962, wherefrom will he bring the precise Electoral College which was peculiar to the said Constitution, and which alone under the said Constitution could replace it ? I posed a direct question to the learned counsel that could he in real earnest insist on the existence or the creation of that type of Electroal College against which he himself had at a time staged de nonstrations.
341. Learned counsel could not give any satisfactory reply in this respect.
(d) No doubt, the Supreme Court in the case of Miss Asma Mani has held that assumption of various powers by Agha Muhammad Yahya Khan was without lawful authority and that he was a "usurper". However, they further held that such acts of a usurper, which may be necessary for the ordinary orderly running of the Government of the country, can be upheld by Courts on the doctrine of "necessity" and examining the Presidential Order No 3 of 1969, and Martial Law Regulation No, 78 of 1971, impugned before them, they held that both these measures of law did not fulfil the test of "necessity" either, and were, therefore, void ab initio. It is to be noticed that the provisions of the Legal Frame Work Order (P.
0. No, 2 of 1970) were not expressly gone into by the Supreme Court from the point of view of the doctrine of "necessity" and, therefore, it cannot be held that the Supreme Court had rejected the said Order on that count. The need to do the exercise of subjecting the Legal Frame Work Order to the test of the doctrine of "necessity", however, is no longer there, as the validity of general elections in the country or the necessity of constituting a national assembly for framing a Constitution has not been denied before us, obviously, because both these objects can well fall within the test of "condonation" of the acts of the usurper as laid down by Hamood-urRahman, C. J., in his judgment aforesaid at page 207. Moreover, with the election of the chosen representatives of the people who recaptured the power from the usurper, the doctrine of "necessity", is no longer operative, because the actions of the chosen representatives are now to be judged not from the point of view of "necessity" but on the strength of the legitimacy of their own source and power. This was so laid down by Muhammad Yaqub Ali, J. In Miss Asma Jilani's case, where after referring to Article 281 of the Interim Constitution, at page 251, his Lordship observed as follows :- "The intended effect of these constitutional provisions is that among other Martial Law Regulations and Orders, Martial Law Regulation No, 78 and Jurisdiction of Courts (Removal of Doubts) Order (11I of 1969) will be deemed to have been validly made, but this is not so because Yahya Khan was competent in law to promulgate these laws. They are valid, because the new Constitution of the State adopts them as constituents of the National Legal Order as from the commencing day i,e, 21st April, 1972 with retrospective effect from the 25th March, 1969. In the words of Kelsen : If laws which were introduced under the Old Constitution, continue to be valid under the new Constitution, this is possible only because validity has expressly or tacitly been in them by the new Constitution.
342. The phenomenon is a case of reception. The Laws which, in the ordinary inaccurate parlance continued to be valid are from a juristic view point new laws whose import coincides with that of the old laws. They are not identical with the old laws because the reason for their validity is different."
343. Respectfully following that principle I would humbly hold that since a competent National Assembly has in its wisdom chosen to apply the process of "abrogation" to 1962 Constitution by validating or to use the words of Hamood-ur-Rabman, C. J. : "condoning" (as it occurs in his Lordship's judgment at page 207), the Proclamation and various other Presidential Orders, Martial Law Regulations and Martial Law Orders and all other Laws made as from the 25th day of March, 1969, the said Constitution stood abrogated with effect from the aforesaid date. This result was to be achieved as laid down in sub-Article (1) of Article 281 of the Interim Constitution, "notwithstanding any judgment of any Court". After this to argue that on the date of the promulgation of the Interim Constitution or as a matter of fact on 20th April, 1972, when Supreme Court announced its judgment, the 1962 Constitution was still in force is not correct because sub- Article (I) of Article 281 had validated the abrogation of 1962 Constitution with effect from 25th March, 1969. When Supreme Court announced its judgment, the present Interim Constitution had not come into force and its provisions were not brought to the notice of Hamood-ur-Rahman. C. J.
344. (as his Lordship states on page 208), though Muhammad Yaqub Ali. J. Adverted to them in his independent judgment in little detail at pages 251253. The contention of Mr. M. Anwar that on the date when the Supreme Court announced its judgment, 1962 Constitution was still in force in view of Article 281 (1) is now not correct and any argument on this basis which no longer exists, is totally misconceived. In this way, if the said Constitution stood abrogated with effect from 25th March, 1969, the question of making amendments therein does not arise, and nor does arise the point of following the procedure of amendments contained in that Constitution. The National Assembly (Constituent Assembly) had its own procedure in this respect which was contained in the Legal Frame Work Order (1970) i,e,, Presidential Order No, II of 1970, which in its own turn was validated, adopted and followed in the matter of the procedure laid down therein for passing the Interim Constitution. In the face of this comprehensive and clear indication in the Interim Constitution, any suggestion to bring back the 1962 Constitution, is nothing but an attempt towards misguidance, chaos and confusion in the Country. When faced with this comment, learned counsel submitted that it was the Supreme Court which had brought it back by holding that it was in force upto 20th April, 1972. I am afraid, the learned counsel was not fair in his analysis and comments is this respect, which were based on ignoring the effect of the latexim Constitution. No doubt the Supreme Court did examine the legality of Agha Muhammad Yahya's actions in the face of the then Constitution of the Country and held him to be usurper, but after Supreme Court's judgment the position is drastically changed, because now not Agha Muhammad Yahya Khan, but the people of Pakistan through their chosen representatives have maintained the abrogation of 1962 Constitution with effect from 25th Match, 1969. The Supreme Court has nowhere held that the act of the chosen representatives of the people suffers from any type of objection in this respect and rather the judgment of Muhammad Yaqub Ali, J. Well upholds and maintains this action. Even in the judgment of Hamood-ur-Rahman, C. J. No final opinion was expressed but hint was definitely thrown at page 208 that vis-a-vis the present regime the circumstances were vitally different which may drastically alter the views which had been expressed by his Lordship about Yahya's regime. To the same strain was the view of Salah-ud-Din Ahmed, J. At page 264. The learned counsel, in my opinion, was not fair in his appreciation of the Supreme Court's judgment which should not have been read out in isolation of but side by side with the Interim Constitution and surely any plea which is based on an incomplete appreciation of the developments after that judgment cannot be encouraged but rather must be discouraged.
(e) Mr. M. Anwar referred to the following passage occurring at page 266 in the judgment of Salah- ud-Din, J. In Miss Asma Jilani's case "A pertinent question, however, arises as to whether after the abrogation of 1962 Constitution by General Agha Muhammad Yahya Khan by his Proclamation of the 25th of March, 1961, this Court can still derive inspiration and authority from the said Constitution. One short answer to this is that since General Agha Muhammad Yahya Khan made his exit from the scene, the Constitution which had been dormant in the meantime revived."
345. ' He then referred to another passage of the same learned Judge at page 266 which reads as follows :- "As regards the judicial power of this Court, it may be stated that 1962 Constitution was based on a Presidential structure and it was accordingly erected on the theory of the separation of powers between the three limbs of the Government, namely Legislature, Executive and the Judiciary. The entire judicial power, including the concept of jurisdiction, was lodged with the Judiciary. The Supreme Court is the creation of 1962 Constitution and its existence was continued under Para. 5 of the Proclamation of Martial Law dated 25th March, 1969. As the Proclamation of the 25th of March, 1969 and the Provisional Constitutional Order, 1969 have ceased to exist due to the disappearance of General Agha Muhammad Yahya Khan from the scene, but the 1962 Constitution has come back with full force and is operative until it is validly replaced by the elected representatives of the people. In Pakistan the legal sovereignty rests with Allah. Therefore, the judiciary as agents of the sovereignty, namely, Allah. In my opinion, therefore, this Court has the requisite power and jurisdiction to determine the questions that have been raised before it."
346. These passages were read by Mr. M. Anwar before us to show that the 1962 Constitution was very well in force until 20-4-1972, when judgment was announced by the Supreme Court and that it was to remain operative until validly replaced by the elected representatives of the people. The sentence "until it is validly replaced by the elected representatives Of the people", instead of favouring Mr. M. Anwar, demolishes the entire superstructure of his arguments. The aforesaid sentence has two key-notes which must be carefully noticed. The first is that it recognised the power and authority of the elected representatives of the people, that is, the Members of the National Assembly to replace the 1962 Constitution and secondly, the word used is "replaced", and not amended. The elected representatives in the instant case duly validated the Proclamations of Agha Muhammad Yahya Khan, dated 25-3-1969 (see Article 281(1), which had the effect of accepting the proposition that 1962 Constitution stood abrogated with effect from 25-3-1969 and that end was to be achieved notwithstanding the judgment of any Court to the contrary (and I should say notwithstanding the judgment of the Supreme Court in Miss Asma Jilani's case).
2. The next point argued by Mr. M. Anwar, learned counsel for t petitioners was that as major number of the members of the National Assembly who belonged to East Pakistan, were not present, therefore, the remaining members of the West Wing could not frame a Constitution for the Country.
347. The contention has no force. Notices were issued to the elected members of both the wings and if the members of the eastern wing have not attended the session, the task of the National Assembly could not be withheld for that reason. It was further suggested that since the Constitution purports to be for the whole of Pakistan, but as in reality Z its eastern wing was under Indian control and occupation, therefore, a Constitution embracing that wing as well could not be framed so long as the said territory was not taken back from India. This contention has no merit. Instances in the world are not lacking where despite the occupation of a part of a country's area by hostile enemy, the right of the chosen representatives of the people to frame a Constitution for the whole of the country does not suffer from any defect of competency in that respect. Example of Germany can be given.
348. Arguments of Mr. S. M. Zafar
2. (a) Mr. S. M. Zafar who appeared in Writ Petitions Nos. 223 and 625 of 1972 did not go to such an extent as Mr. Anwar did to contend that the National Assembly was bound by the procedural techniques of 1962 Constitution, but submitted that the National Assembly was not all sovereign in the matter of procedure for holding its sessions and conducting its proceedings and for the matter of that for framing a Constitution. In all these matters, he submitted that it was bound by the Legal Frame Work Order, 1970 (P. O. No, 2 of 1970 dated 30-3-1970), which was adopted or in a way accepted by the chosen President of the country who himself issued amendments therein by promulgating President's Order No, 8 of 1972 (Legal Framework (Amendment) Order, 1972 (Martial Law Pending Proceedings) Order, 1972). The four Orders he submitted, constituted the frame-work within which the National Assembly had to work and to state that the National Assembly could function in any manner, it liked, was too broad a proposition, because if taken to its logical end, it would mean that a group or groups of the members could hold their meetings under any Shisham tree of their choice and come out with a claim that such and such groups being majority groups, had framed a Constitution for the country. The sovereignty of the people of Pakistan or of the members of the National Assembly, he submitted could not be expected to be of such a type which would leave them free to act in any unsystematic, irregular or disorderly manner. The example of sitting under a Shisham tree is too general and extreme to be taken any serious notice of. However, there is no harm in holding that in the matter of adopting a procedure for framing a Constitution, the National Assembly did adopt the procedure, rules, and principles contained in the aforesaid four Presidential Orders. This rather shows that the National Assembly did not act in any disorderly manner and nor did it sit under a Shisham tree while framing the Interim Constitution. This puts an end to the point regarding the procedure adopted or to be adopted in the conduct of the National Assembly and for its rules of business.
(b) Taking up the point that the National Assembly was bound to frame a Constitution within the four-corners of the Legal Frame Work Order (hereinafter called the L. F.
349. 0.), and other Orders amending it and in matters where it had exceeded those limits the Interim Constitution would be ultra vires (without conceding the point) I asked the learned counsel that he should in point of fact tell us as to how While framing Articles 280 and 281 (which alone were attacked by him before us), it had violated the I. F.
0. Or its amending Orders. The answer of the learned counsel was that in the L. F. O. ; it was written that the Constitution should be such it should have guaranteed fundamental Rights and Independence of Judiciary. He referred to Article 20 of the L. P.
350. 0., which dealt with Fundamental Principles of the Constitution. Article 21 which dealt with Preamble of Constitution and Article 22 which dealt with directive principles of the framed Constitution. He argued that while enacting Articles 280 and 281, the framers of the Interim Constitution had not kept any regard for Fundamental Rights of the citizens and Independence of Judiciary.
351. ' Articles 280 and 281 read as follows :-
280. Continuance in force of certain laws and repeal of other laws.-(1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
(2) The proclamation made on the twenty-fifth day of March, 1969, is revoked with effect as from the commencing day, and the Orders specified in the Sixth Schedule and any Orders amending those orders are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders.
(3) All Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the. Seventh Schedule, are repealed with effect as from the commencing day, and on that day each Martial Law Regulation and the Act of the appropriate Legislature shall, with the necessary adaptations, have effect as such : ' Provided 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.
(2) For the purpose of bringing the provisions any existing law into accord with the provisions of this Constitution (other than Part II of this Constitution), the President may make, by Order, such adaptations, whether by way of modification, addition or omission as he may deem to be necessary or expedient and any order so made shall have effect (or be deemed to have had effect) from such date not being a date earlier than the commencing day, as may be specified in the Order.
(5) The President may authorize the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (4) in respect of laws relating to matters with respect to which the Provincial Legislature has power to make laws.
(6) The powers exercisable under clauses (4) and (5) shall be subject to the provisions of any Act of the appropriate Legislature.
(7) Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no actual adaptations have been made in such law by an Order made under clause (4) or clause (5), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Constitution.
(8) In this Article, "existing laws" means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the commencing day.
352. "281. Validation of orders and acts etc.-(1) All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March, 1969, are hereby declared notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
(2) 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, or purported to have been made, taken or done, on or after the twenty-fifth day of March, 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exerise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.
(3) No suit 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 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."
(c) Mr. Zafar stated that a correct analysis of these Articles was :-
(i) that they purported to validate all laws made by the "usurper" notwithstanding any judgment of any Court and precluded all Courts from questioning their validity. This according to him among other defects, was tantamount to interference with independence of Judiciary.
(if) That they validated all orders made, proceedings taken and acts done or purported to have been made, taken or done on or after 25-3-1969 in exercise of the powers derived from laws made during the Martial Law period and further stated that they shall be deemed to be and always to have been validly made, taken or done. According to the learned counsel, this confirmation of retrospective validity on illegal acts or convictions or for such acts which, for example, were not an offence, when they were committed but were being so made retrospectively tantamounts to violate a Fundamental Right which the Interim Constitution had itself recognised in the form of Fundamental Right No, 11 which guaranteed that :- "11. Protection against retrospective punishment.-No law shall authorize the punishment of a person-
(a) for an act or omission which was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."
353. ' This right had throughout Yahya's regime, according to the learned counsel, remained in operation and was continued by the Interim Constitution too.
(iii) Whereas on one hand, they validated even unlawful and ab inftio void convictions (to confine the discussion to the facts of his case), on the other hand, they purported to save and give immunity to those who themselves were guilty of having violated the law (and probably having committed offences, acts of treason and torts) in unnecessarily harassing people, confining them in unlawful confinements under unlawful orders and convictions. In a case where illegal conviction or confinement of any person was allowed to be continued under previously illegally passed order, this, according to Mr. Zafar, was against the Fundamental Right reproduced above. The wrong in this manner being a continuous wrong, he submitted it could be examined with reference to the Fundamental Rights which were in force with effect from 21-4-1972 and if the said wrong could no longer be supported to continue, it ought not to be allowed to continue and any attempt in Articles 280 and 281 to allow the wrong to continue in spite of the continuation being hit by a Fundamental Right was in excess of the authority of the National Assembly, which, in this respect could rightly be said to have failed to guarantee Fundamental Rights to the citizens.
(iv) In the alternative, he argued that Articles 280 and 281 should be so construed as to mean that they did not intend to cover mala fide acts, or acts of coram non judice or acts suffering from material defects. The answer to all these points will be found in the discussion hereinafter following.
4. Mr. S. M. Zafar and Mr. Ranjha submitted that the present National Assembly, at the time it assembled in April, 1972 for framing a Constitution, was merely a Constituent Assembly and had not assumed till then the status of a Federal Legislature. This, they submitted was clear from the four Presidential Orders hereinbefore referred to and was even otherwise evident from the principle that a Federal Legislature was to come into force under the Constitution and unless the Constitution itself was first promulgated, the question of Federal Legislature coming into existence did not arise. This argument, so far appears to be correct, and I am prepared to concede that the National Assembly was a Constituent Assembly concerned merely with the task of framing the Constitution and till the Constitution was framed, its status as a Federal Legislature did not emerge.
354. Learned counsel for the petitioners argued that Articles 280 and 281 of the Interim Constitution did not possess any "constitutional character" and they were more in the nature of laws of indemnity which as Article 278 of the Interim Constitution itself snowed was a job which could be performed by a Federal Legislature after lifting of Martial Law. In this respect, it was argued that the Constituent Assembly had exceeded its jurisdiction and authority in entering into the domain of "legislation" as distinct from "Constitution", and from this point of view the provisions in the form of Articles 280 and 281 according to the learned counsel were ultra vires, the powers of "Constitution- making" and the High Court, therefore could independently examine the validity of laws and actions, etc. Mentioned therein. In the alternative it was suggested that the aforesaid validating and indemnity provisions should not be given the status of "Constitution" but should be considered as "ordinary laws" and enforced only in that light and at that level and should not be given any status higher than that. Reliance for this proposition was placed on Abdul Aziz alias Labha and others v. The Province of West Pakistan (1), where Cornelius, J. Indicated that certain provisions in the Constitution may sometimes have the status of ordinary laws. This brings me to the question as to what is a "constitutional job" and what is a "legislative job". My humble view is that the question is to be answered with reference to facts, circumstances and situations prevalent in the country concerned where such a question is to be answered and no hard and fast rule on mere theories and broad-principles should be tried to be imposed regardless of the peculiar conditions facing the concerned country and the stages through which it has at the relevant time or times passed.
355. Proceeding on these premises, it will be evident that our Country had to pass through very sad days which have been succinctly mentioned in the judgment of Muhammad Yaqub Ali, J., in Mist.
356. Anna Jilani's case and since the narration of facts therein is almost a complete survey of the situation, I need not recapitulate all that is written there. Will, however, be necessary to remind that the Country had been taken over by a usurper without any legal authority or sanction. He had arrogated to himself the office of the President of Pakistan and the Chief Martial Law Administrator and put the entire country under a martial law. He had abrogated the late Constitution of 1962. He had dissolved the National and Provincial Assemblies. He had promulgated Proclamation (s), Presidential Orders, Ordinances, Martial Law Regulations and Martial Law Orders. He had dissolved One-Unit, that is the Province of West Pakistan and created four Provinces in this Wing. He dissolved the High Court of West Pakistan and created different High Courts in West Pakistan. He broke up the principle of "parity" contained in 1962 Constitution (or 1956 Constitution) and introduced adult franchise. He got general elections held in the country by conceding to the People of Pakistan their inherent right to frame a Constitution for themselves. The list of the jobs done
(I) PLD 1958 SC 499 and activities performed by him or during his period is of a varied range involving even the introduction of supra-constitutional measures which in a way served as an umbrella for all types of actions and functions which were being carried out thereunder. The Constituent Assembly was faced with such a peculiar situation, parallel of which it is probably difficult to find anywhere else in the world. At the time when the people of Pakistan took back the power from the usurper, East Pakistan had fallen in Indian hands and some area in the Wet Pakistan was also in enemy occupation. The troops were still engaged on borders and internal situation in the western wing was facing great threats of multiple character. Martial Law which had been imposed by the usurper had to be lifted and stock of things was to be taken. Earlier the programme of the President was to allow it to continue at least till August, 1972 but demands from inside the country were increasing for its accelerated lift. In these circumstances, a short session of the National Assembly was convehed which passed a unanimous vote of confidence in the President and also passed the Interim Constitution. The legitimacy of the status of Mr. Bhutto as the President of Pakistan and that of his regime and Government is, therefore, beyond question. In this Interim Constitution, the National Assembly in its wisdom, in order to avoid the confusion prevalent in the country getting worst confounded, validated the legal instruments issued by Agha Muhammad Yahya Khan and actions taken thereunder and also made indemnity provisions in that respect. This job of the Constituent Assembly, in the peculiar circumstances hereinbefore explained, is essentially of a constitutional character because, the Legislature as yet has not come into being-(as permanent Constitution is still to be framed)-and thus no exception can be taken to the enactment of Articles 280 and 281 in this context. Moreover, no case-law nor any relevant text has been produced before us to show that in a situation as has been explained above, Articles 280 and 281 could not have been passed by a Constituent Assembly. Even otherwise also, the argument has not appealed to me that a federal Legislature could have enacted such laws but the Constituent Assembly could not have so done. This tantamounts to give a higher status to the Federal Legislature than the Constituent Assembly, which theory, in the peculiar circumstances of the present case, it is not possible for me to endorse.
5. Mr. A. K. Brohi in his Fundamental Law of Pakistan (1958 Edition) page 86, Para. 52 under the heading, "Contents of the Constitution", with reference to 1956 Constitution states as follows :- "What are the matters that should be appropriately included in the written Constitution of a Country is a question that is incapable of being answered in terms of any principle. As a matter of experience one observes that the different written Constitutions of the world show different kinds of topics in regard to which provisions are made in those documents. Whether the Constitution should contain a few essential provisions or it should be one which should have reference to even the unessential aspects of State-craft is really a question for the Political Scientist to answer.
357. ' Our Constitution is prefaced by a long preamble which is, in substance, a reproduction of the objectives resolution passed by the Constituent Assembly on 12th March, 1949, in which it had defined the goals and the ends which the framers of the Constitution were to set before themselves when drawing up the Constitution ; it includes a Chapter on Fundamental Rights (Rights which are justiciable), and another on Directive principles of State policy (Directives which are not justiciable) ; it also contains elaborate provisions with regard to the setting up of several commissions and councils which are not of any fundamental importance to the life of the State and which could well have been set up by means of ordinary legislation. It also establishes the machinery of Federal and Provincial Governments, provides for the Constitution of Federal and Provincial Legislatures and sets forth the Constitution and Authority of the Supreme Court and the High Courts of our Country. It also makes provisions in the Part relating to Temporary and Transitional provisions for a change over from the sort of Constitutional Government which was in existence under the provisions of Government of India Act, 1935, as adapted in Pakistan, to the Government envisaged by the Constitution."
358. ' The learned author then refers to a judgment of Muhammad Munir, C. J., in the Punjab Province v.
359. Malik Khizar Hayat Khan Tiwana (1). He has introduced this judgment in his cwn words by quoting a small passage from the same but in my opinion, to appreciate the point presently involved before us, a bit larger portion of the said judgment shall have to be reproduced. It reads as follows "It is apparent that if this Act is good and no objection can be successfully urged against it the decree of the High Court must be set aside and the respondent's suit dismissed. The chief attack on the validity of this Act is Mr. Sleem's assertion that none of its enacting provisions is a provision as to the Constitution of the Dominion within the meaning of subsection (1) of section 8 of the Indian Independence Act, 1947 and that, therefore, the Constituent Assembly exercising the powers of the Legislature of the Dominion was not competent to enact it. Sections 4 and 5, which declare the impugned Provincial Legislation to be retrospectively valid and bar the jurisdiction of all Courts to inquire into their validity, are challenged on the further ground that sections 88 and 299 of the Constitution Act having been retrospectively amended, the subject-matter of these two sections fell within the sphere of the Provincial Legislature and during the period of a Proclamation of emergency also within the scope of Federal Legislature and not within the field of legislative functions of the Constituent Assembly when it acts under subsection (1) of section 8. The sole question, therefore, that fails for determination in this appeal is whether we have the jurisdiction to question the validity of the Validation of Laws Act. By the non-obstante clause added to subsection
(1) of section 8 of the Indian Independence Act by the Constitution Amendment Act, 1954 the power of the Constituent Assembly exercised under that subsection cannot be called in question in any Court of law. If. Therefore, it be held, as it must be, that in passing the Validation of Laws Act the Constituent Assembly acted under subsection (1) of section 8, this Court is precluded from entertaining any objection to the competency of the Constituent Assembly to pass that law. Now there can be no manner of doubt that whether the Validation of Laws Act be considered to be a provision 'as to the constitution of the Dominion' or not, the Constituent Assembly in passing that Act did not act under subsection (1) of section 8 because at the time of the passing of that Act that Assembly was not functioning as the Federal Legislature but only as
(1) PLD 1956 FC 200 the Legislature of the Dominion engaged in making provision as to the constitution of the Dominion.
360. This was conceded by Mr. Saleem, but he contends that it is for the Court to determine whether the legislation passed by the Constituent Assembly did in fact amount to making provision as to the Constitution of the Dominion, and that if the Court held otherwise the newly-added clause to subsection (I) of section 8 would not bar the jurisdiction of this Court to declare the legislation to be ultra vires. I find it impossible to accept this argument because the words of the newly-added clause are so wide and all embracing that if the Court once holds that in passing a law the Constituent Assembly purported to act under subsection (1) to section 8 the Court's jurisdiction to call in question the power of that Assembly to act under that subsection is immediately ousted. In fact, it seems that this clause was added to avoid the precise objection that Mr. Saleem has raised because the Constituent Assembly being Supreme legislative body without any limitations on its power when it acts under subsection (1) of section 8, its action cannot be challenged on the ground that while so acting it was not exercising the powers of making a provision as to the Constitution of the Dominion. In law there is no precise definition of the matters that may be included in a Constitution and the range of the subjects that may be so included is so wide that what is a constitutional matter according to one Constitution may not at all be a constitutional matter according to another, though for the purposes of political science or constitutional philosophy it may be possible to enumerate the matters that may properly be provided in a Constitution. No Judge, lawyer or writer, however, has ever ventured to assert that certain matters cannot as a matter of law be enacted in a Constitution Act. Thus, while the Constitution of one State may provide that its nationals shall or shall not wear a particular dress or shall or shall not be entitled to certain rights that of another may completely omit such matters and confine itself only to the distribution of governmental powers among the various organs of the State. Indeed a Constitution may say no more than this that all sovereign powers of the State shall vest and be exercisable by a particular person who shall not only be the law-giver of the State. It seems to me, therefore, to be perfectly plain that if a body is invested with the power of making provision as to the constitution of a State. It is on any general principle or theory of constitutional law impossible to circumscribe its constituent powers. If it decides to say that a certain provision has to be considered as a constitutional provision, that is the end of the matter and the legality of that provision cannot be questioned on the ground that it did not properly fall within the domain of constitutional law as understood by constitutional lawyers or writers. In the present case, I have not the slightest doubt that the Constituent Assembly when it passed the Validation of Laws 'act was professing to make provisions as to a constitutional matter and once that position is accepted the jurisdiction of this Court to question the competency of the Assembly to legislate as to that matter is barred by the notwithstanding-clause of subsection (1) of section 8 of the Indian Independence Act, which was added by the Constitutional (Amendment) Act of 1954."
361. ' The provision of law involved in the case of The Punjab Province v. Malik Khizar Hayat Khan Tiwana was also a sort of validating provision and it was held that such a provision could well be included within the domain of Constitution-making. I would feel no hesitation in respectfully following the view that Constitution may embrace various types of topics and there can be no hard and fast list in that respect, but if the observations of Muhammad Munir, C. J., have any propensities of suggesting that the grund norms of a country can also be in any manner ignored, then the same would no longer be a good law in view of the latest pronouncement of the Supreme Court in Miss Asma Jilani's case. I would, therefore, enter a and respectfully hold that the remarks of Muhammad Munir, C. J., in the passage quoted above are to be read subject to the view now expressed in Miss Asma Jilani's case. With this clarification, I respectfully follow the verdict laid down in the said case that validation of laws and actions is a subject which can rightly be held to fall within the domain of Constitution-making and Articles 280 and 281 of the Interim Constitution are quite apt in their context and perfectly valid from this point of view. These Articles in no way can be attacked on the ground of interference with the independence of Judiciary because as will he analysed ahead the powers of Judiciary on a correct interpretation of the relevant Articles is quite intact, within the framework of the Constitution and obviously so because no fundamental rights in a legal framework can be available outside the Constitution. Equally, there is no retrospective punishment for acts which were not offences at the relevant time. The case is to be approached from the point of view of validation and not from the point of view of the considerations tabled by Mr. Zafar in sub- paras. C (i), C (ii), and C (iii) of Para. 3 of this judgment above.
362. Construction of Articles 280 and 281 I ntroductory
6. Stage is now ripe to attend to the true construction and interpretation of Articles 280 and 281 of the Interim Constitution. In this respect certain points need clarification which I proceed to mention.
(i) The first thing to be found out is as to which are the laws which have been allowed by these Articles to be continued and which are not. In the table below in the first column, I have given a list of the laws which will continue and in the second column the laws which will not continue :- Laws which will continue Laws which will not continue 1 2
(I) All existing laws-(a) subject to this Constitution- and
(b) except as provided by Article 280(1) ;
(2) All Presidential Orders will continue (except those which have been mentioned in the Sixth Schedule or except Presidential Orders amending them).
(1) Presidential Orders mentioned in Sixth Schedule and Presi- dential Orders amending them will not continue but are repealed with effect from 21-4-1972.
(1) All Martial Law Regulations, Martial Law Orders (except those in the Seventh Schedule), shall not continue but are repealed with effect from 21-4-1972
(3) Any existing laws made under Presidential Orders mentioned in the Sixth Schedule or under Presidential Orders amending them ..... Wi.; continue.
(3) All Martial Law Regulations, Martial Law Orders, mentioned in the Seventh Schedule, will continue.
(4) At this stage effect of Repealed Laws may also be seen in Article 295. They will continue for pending cases.
(5) Effect of repeal is given in Article 295 which says that for pending proceedings the repealed Presidential Orders, Martial Law Regulations and Martial Law Orders shall continue applying.
(6) Proclamation, dated 25-3-1969, is revoked with effect from 21-4-1972.
(ii) The next thing to be noticed is that the words "existing laws" have been defined in sub-Article
(8) of Article 280 so as to mean, "all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and letters patent, constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan or having extrat-territorial validity, immediately before the commencing day." This definition is the same as was contained in sub-Article (7) of Article 225 of the late Constitution of 1962. Case-law under the aforesaid provisions shows that the word "regulation" would include a Martial Law Regulation (See Azizur Rahman Chowdhury v. M. Nasiruddin and others (1) and Mubarak Ali v, The State (2) and word "order" would include Presidential Orders. (See Azizur Rahman Choudhury v. M. Nasirurdin and others and Mubarak All v. The State ; Lt.-Col. G.L. Battacharya v. The State and anther (3) and Jalal Din and another v. Major Muhammad Akram Khan (4). It was also pointed out that the aforesaid provision of law also covered the Ordinances". See Abu Farid Khan v. The Province of East Pakistan
(5) ; Abu Farid Khan v. Province of East Pakistan and another (6) ; Muhammad Siddiq v.
363. Commissioner, Lahore Division, Lahore and another (7) reversed on a different point in Muhammad Afzal v. The Commissioner Lahore Division and another (8) and such "Ordinances" which were in force though not in operation on the date of commencement of the Constitution Muhammad Afzal v. The Commissioner, Lahore Division and another.
(iii) The third thing to be taken note of is that the continuation of the previous laws will, however, be as stated in sub-Article (1) of Article 280, "subject to this Constitution", which means that in any respect. If for in tance, they come into conflict with any Fundamental Right, then their continuation will be jeopardised as stated in Article 7(1) which lays down that, "any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter,
(1) PLD 1965 SC 236 (3) PLD 1964 SC 503 (5) PLD 1964 Dacca 473 (7) PLD 1962 Lab, 999
(2) PLD 1965 L.,1). 102 (4) PLD 1963 Lah. 5% (6) PLD 1963 Dacca 705 (8) PLD 1963 SC 401 shall to the extent of such inconsistency be void." There are exceptions to this as given in sub-Article (3) of Article 7, which inter alia states that to any of the laws specified in the First Schedule as in force immediately before the commencing day, the provisions of this Article shall not apply.
(iv) The fourth thing to be noticed is that as regards the laws which have been repealed, policy is laid down in Article 295 which runs as follows : - "295. Where a law (including a President's Order, a Martial Law Regulation or a Martial Law Order) is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not, except as otherwise provided in this Constitution,-
(a) revive anything not in force or existing at the time at which the repeal takes effect ;
(b) affect the previous operation of the law or anything duly done or suffered under the law ;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment ; or ( f) affect the continuance of anybody or authority constituted by or under such law ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, and such body or authority continued as if the law had not been repealed."
(v) The fifth thing to be kept in mind, as is well-settled is that only such laws can continue which must be valid laws, and if for example, any pre-Constitution law is such which was made by a Legislature, which had no power to make it aad which is void ab initio, then it is not an enforceable law and will not continue. See Shukar Din v. Major Rehman and others (1). To cover this aspect of the matter in Article 281(1), it has been specifically laid down that :-
(1) made as from 25-3-1969 are hereby declared notwithstanding any judgment of any Court to have been validly made by a competent authority and shall not be called in question in any Court.
(2) All Proclamations ;
(3) President's Orders ;
(4) Martial Law Regulations ;
(5) Martial Law Otders ; and
(6) all other Laws-
(vi) At this stage reverting to Article 295 and examining the effect of repeal of Laws which are :-
(a) Presidential Orders given in the Sixth Schedule ; or
(b) Presidential Orders amending them ; and
(1) PLD 1965 (W. P.) Lah. 522
(c) All Martial Law Regulations and Martial Law Orders (except those which are contained in the Seventh Schedule) ; the position is clear that the repeal is not to affect various matters in Article 295 except as otherwise provided by this Constitution. To summarise Article 295, it leads to the following results {{TABLE}} Repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law. Affect the continuance of any body or authority constituted by or under such law.
364. Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability, affect any investigation, legal proceeding or remedy in respect of any such penalty, forfeiture or puhishment, and such body or authority continued as it the law had not been repealed. And any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed. {{TABLE}} ' Though the general law is that whenever a statute is repealed it is considered as never to have existed at all but the savings contained in Article 295 show that vis-a-vis the matters hereinbefore mentioned, in the above table and for the particular cases enumerated therein, the repealed laws shall continue. However, as the repealed laws are not placed in this respect (i. e. For the purpose of even their limited continuation) in the First Schedule, it will mean that the limited continuation allowed to repealed laws will also be subject to Article 7(1) of the Interim Constitution which says that any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, (which deals with Fundamental Rights), shall, to the extent of such inconsistency be void.
365. Construction of Article 281(2)
7. This brings me now to the most crucial point involved in these cases and that is as to how far the orders made, proceedings taken or acts done on or after the 25th of March, 1969, have been saved from the scrutiny of Courts. The relevant provision in this respect is sub-Article (2) of Article 281 which states :-
(i) all orders made, proceedings taken or acts done ;
(ii) by any authority or by any person ;
(iii) which were made, taken or done ;
(iv) or purported to have been made, taken or done ,
(v) on or after 25-3-1969 ;
(vi) in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, Or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid;
(i) shall be deemed to be validly made or
(ii) and always to have been J taken or done.
366. ' Before an immunity is claimed under the aforesaid provisions of the Interim Constitution for any order made, proceeding taken or act done, it is to be shown that the relevant order was made, proceeding was taken, or act was done or that it was purported to have been made, taken or done : "in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws ;" Or "in execution of any orders made, or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid."
367. ' The precise question is as to when can an order be said to have been made, or a proceeding said to have been taken, or an act said to have been done, or purported to have been made, taken or done in exercise of the powers derived from the President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws or in execution of any orders made, or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid.
368. To be more specific, in other words, can orders, proceedings or acts which (i) for instance are main fide or (ii) which are coram non judice vis-a-vis the laws under which they are claimed to have been made, taken or done, or (iii) which suffer from similar material or fatal defects be said to have been made, taken or done or purported to have been made, taken or done in exercise of the powers, derived from the laws hereinbefore mentioned or in execution of any orders etc., made in the exercise or purported exercise of powers as aforesaid. I will take each of these subjects separately.
369. Re: main fide, biased and malicious proceedings acts and orders
8. The phraseology used in Article 281 (2) is that such orders which' were made or purported to have been made in exercise of the powers derived (to be brief), from any Martial Law Regulation, shall be deemed, to be and always to have been validly made. The point for consideration is as to how far this deeming provision extends and what is its exact scope. The cases in this respect can be divided into two categories, Firstly, those where orders were, in fact, made in exercise of the powers derived from any Martial Law Regulation, and, secondly, those where orders, though not, in fact, so made, but purported to have been made in exercise of the aforesaid power. So far as the cases of the kind mentioned in, firstly, are concerned there can be no dicficulty in comprehending them. These will be those types of cases which strictly fall within the scope and requirement of the relevant Martial Law Regulation. A question arises if these cases fall quite within the scope and requirement of the relevant Martial Law Regulation, then what was the need to validate them by way of a deeming fiction contained in Article 281(2). The answer is that there was a serious apprehension that the very taking over of powers by Agha Muhammad Yahya Khan might be declared as without lawful authority in Miss Asma jilanis case and might have had effect on various laws promulgated and actions taken or orders passed thereunder. In Article 281(1), therefore, the.
370. Constituent Assembly first validated all the Proclamations, Presidential Orders, Martial Law Regulations and Martial Law Orders issued during the Martial Law Regime and thereafter validated the orders passed thereunder i,e,, orders of the kind of, firstly, mentioned above. This was to take the process of validation of laws to its proper terminal. After doing so, the next question for consideration before the Constituent Assembly was as to how far this deeming fiction of validity be extended to other orders or actions. For this they covered the cases of the kind mentioned in secondly, above, and said that orders purported to have been made in exercise of the powers derived from any Martial Law Regulation should also be deemed to be valid. The phrase, "purpoted to have been made" it is to be noticed, is not used just in abstract, but is circumscribed with the sentence, "in exercise of the powers derived from any vlartial Law Regulation". Any act, therefore, which is sought to be brought under this concept of validity clause must be such which should trace its source to a power derived from any Martial Law Regulation. The sentence "in exercise of the powers derived from any Martial Law Regulation", indicates that when an element, which is not derivable from any Martial Law Regulation, has entered into or crept in (e. g.) malice, bias br bad faith -, then since there will be no justification for intrusion of such an element, any order, which suffers from this characteristic, will not be an order purported to have been passed in exercise of a power derived from any Martial Law Regulation, but would rather be an order procured by malice or bias and will not be saved. That this is the proper construction of Article 281(2) is evident from another aspect and that is that orders passed under such Presidential Orders, Martial Law Regulations and Martial Law Orders, which have been, for example, repealed, have been saved, by Article 295 only to the extent to which they were "duly done" under the repealed law. Both the Articles, namely, 281(2) and 295 vis-a-vis orders previously passed under repealed laws should, therefore, be consistently read. If all types of orders, regardless of mala fides, bias or coram non judice etc., were to be validated, then the use of word "duly" in Article 295 would be an exercise in redundancy which obviously cannot be attributed to the Constitution-makers. I posed a question to the learned counsel for the respondents that if for instance, the maximum sentence provided for in any concerned Martial Law Regulation was only seven years, but the Military Court awarded a sentence of fourteen years, will the order of the Military Court be saved ? Some of the learned counsel for the State, who deputized the learned Attorney-General on some dates, and who had taken up the extreme stand, submitted that such an order would be saved by the phrase, "purported to have been done", in exercise of the powers derived from a Martial Law Regulation and, therefore, would be valid. Obviously, the answer is not correct and the learned Advocate- General conceded that he could not subscribe to such an extreme proposition. This will show that the argument that validity conferred upon past orders, in Article 281(2) is all sweeping or unlimited, as was being suggested to us, is not correct. I cannot attribute an intention to the Constitution- makers that after taking back power from a usurper and after knowing fully well that during Martial law period, there may have been passed mala fide orders, they had any desire to condone them side-by-side by B laying down a guarantee in Article 3 of the Constitution that every citizen shall be dealt with in accordance with law and law alone. No law envisages that a citizen may be treated by mala fide or biased orders and, therefore, I cannot accept that in Article 281(2), there was an intention to protect malacious and mala fide acts.
9. While studying the subject, certain case-law for instance in connection with section 80, C.P.C., has come to my notice, where it is laid down that before instituting a civil suit against a public officer :- "in respect of any act purporting to be done by such public officer in his official capacity," an advance notice has to be issued to him. A controversy developed as to whether acts done mala fide were covered by this provision of law and in their case also an advance notice was necessary or not. One school of thought was that the section was limited to actions done negligently or inadvertently and not to mala fide acts. See Muhammad ,Saadiq Ahmad v. Panna Lal (1), Peary Mohan Das v. D. Weston and others (2), Raghubans Sahai v. Phool Kumari (3), Sahebzadee Shahunshah Begum v. Ferguson (4), Sardarisingji v. Ganpatsingji (5), The Municipal Committee of Moradabad v. Chatri Singh (6), and Birj Mohan Singh and others v. The Collector of Ailahabad as President of the Municipal Committee of Allahabad (7). The other school of thought was that the section applied to all acts of public officers whether done bona fide or mala fide. According to this view an act was still an act purporting to be done in an official capacity even though it was done mala fide. See Samanthala Koti Reddi v. Pothuri Subbiah and others (8) ; William Allen and another v. Bai Shri Dariaba (9), (Official act is not necessarily a legal act, it may be an illegal one) ; The Collector of bijnor, Manager of the Estate of Chaudhri Ranjit Singh, a Minor v. Manuvar (10), Mohanta Raghobananda Das v. D. V.A. Aidu and another (11), Jageshar Thakur v. Mahabharath Thakur (12), Noor Muhammad v. Abdul Fateh and others (13), Nand Kumar Sinha v. Rai Bahadur Pa.Hupati Gho h and others (14), Ram Kishun Prasad v. Ram Narain Prasad (15), Jogendra Nath Roy Bahadur v. J. C.
371. Price (16), Abdul Rahim v. Abdul
(1) I L R 26 All. 220 (2) 13 I C 721 (Cal.)
(3) I L R 32 Cal. 1130 (4) I L R 7 Cal. 499
(5) I L R 14 Bom. 395 (6) I L R 1 All. 269
(7) I L R 4 All. 102 (8) AIR 1918 Mad. 62
(9) I L R 21 Bom. 754 (10) I L R 3 All. 20
(11) AIR 1961 Orissa 31 (12) AIR 1950 Pat. 32
(13) AIR 1941 Pat. 461 (14) AIR 1941 Pat. 385
(15) AIR 1934 Pat. 14 (16) I L R 24 Cal. 584 Rahim (1); Quailey v. A. H. Ban Shoke (2), Bakhtawar Mal v. Abdul Latif (3), Dakshina Ranjan Ghose v.
372. Omar Chand Oswa l (4), Udharam Vassanmal Nazir and another v. Grahams Trading Co. Ltd. And others (5), and Province of West Pakistan and others v. Ghulam Qadir and another (6). In Bhagechand Degdusa Gujraihi and others v. Secretary of State for India (7) there exists an observation of the Privy Council that the section did not admit of any implications or exceptions.
373. Though this observation was made by the Privy Council while deciding the point as to whether in a suit for injunction also a notice was essential but the various text-writers and commentators have been interpreting it as to mean that even in mula fide acts also notice was necessary. Adopting some what similar line of arguments (but without referring to the case-law hereinbefore mentioned), the learned Advocates for the respondents submitted that in Article 281(2) of the Interim Constitution whereby acts done or purported to be done in exercise of powers derived from a Martial Law Regulation, were declared valid, the situation did not admit of any implications or exceptions and no distinction could be made on the grounds of the acts being mala fide or otherwise. I think the contention has no force. The case-law under section 80, Civil Procedure Code (or similar other provisions), is under a different subject and for a different purpose. There the aim of the Legislature is to give time to the public officer concerned to make amends or to give redress to the aggrieved plaintiff. The aim is not to validate his actions but to set them right by providing for an advance notice. In that context, therefore, the interpretation put upon the words "purporting to be done", existing in section 80, Cr. P. C. Or similar other laws, may be quite apt but in Article 281(2), the context is entirely different and rather just the opposite. Here the subject-matter is "validation" and as already indicated, in this context to impute an intention that even mala fide acts, were being validated, would not be a correct attribute to the Constitution-makers and, therefore, such an interpretation should be avoided as far as possible. Learned Advocate-General referred to certain Supreme Court cases, namely, Muhammad Khan v The Border Allotment Committee Through Major Muhammad Akram and another (8), Nawab Haji Khair Muhammad Khan v. The State (9) and Mian Iftikhar-ud-Din and another v. Muhammad Sarfraz Administrator Progressive Papers Ltd. (10) for the purpose of showing that where jurisdiction of superior Courts with regard to acts purported to have been done under any law was ousted, the said Courts could not assume jurisdiction on the ground of mala fides. These cases again are in different contexts and are not on the subject of "validation" of acts but on the "ouster of jurisdiction". The Supreme Court nowhere held in the aforesaid cases that even if mala fides in any action were proved still it would be a valid act by virtue of the use of the words under discussion and, in fact, not a single case in this direction has been cited before us of any country or Court. On the other hand, in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (11) Hamood-ur-Rahman, C. J.,
(I) AIR 1924 All. 851 (2) (1900) 1 L B R 152
(3) I L R 29 All. 567 (4) AIR 1924 Cal. 145
(5) AIR 1937 Sind 281 (6) PLD 1963 (W.P.) Kar. 337
(7) AIR 1927 P C 176 (8) PLD 1965 SC 623
(9) PLD 1966 SC 604 (10) PLD 1961 SC 585
(11) PLD 1969 SC 14 struck a very important note regarding mala fide act and held that a mala fide act is not an act in accordance with law. In Samanthala Koti Reddi v. Pothuri Subbiah and others (1) a view was taken that since before or after the phrase, "purporting to be done", the words "in good faith" were not attached, therefore, they should not be read into the same. The observations of Hamoodur Rahman, C. J., in PLD 1969 SC 14, supply a complete answer to this view. In that case, his Lordship was dealing with the scope of Article 98(2)(b) of the late Constitution of 1962 wherein it was written that a High Court could examine whether the detention of a detenu was without lawful authority or in any unlawful manner. An argument was raised in the Supreme Court that the question of mala fide of the orders impugned could not be gone into in this respect. The learned C.J. Held that the contention was not correct and further observed that the point whether detention was not made without lawful authority or in an unlawful manner or was not mala fide could always be examined by the High Court. He further held that to build an argument on the existence or non-existence of words "good faith" in a statute, would not carry the matter anywhere because otherwise if-(for instance)- in a statute there are no words that an officer should act in good faith ; then could it be said that he need not act in good faith ? This is a complete answer to the series of cases hereinbefore mentioned by me which. Therefore, in the context of the present circumstances have no application and if they are sought to be pressed into a situation of the present kind, I would respectfully say that they would not be a good law. It is advisable to reproduce a summary of the relevant portion of the Supreme Court's judgment as digested in headnote (a) of the report which reads as follows :- "In a writ petition filed on behalf of a detenu (under the Defence of Pakistan Ordinance, 1965 and the Rules thereunder), the State had taken a preliminary objection against the jurisdiction of the High Court to examine the grounds of determination of the detenu upon the basis of the rule laid down in Ghulam Jilani's case PLD 1957 SC 373. This objection was on the ground that clause (x) of subsection (2) of section 3 of the Defence of Pakistan Ordinance, 1965, had been amended by Defence of Pakistan (Amendment) Ordinance 1968, after the decision in Ghulam Jilani's case with the specific obj..Ct of providing that the High Court should not examine either the sufficiency or ihe reasonableness of the grounds of detention under the said Ordinance. Aggrieved by the decision of the Division Bench of the High Court on that objection, the State filed an appeal before the Supreme Court. Before the Supreme Court it was urged that although the High Court has undoubtedly under Article 98 of the Constitution the power of judicial review of executive action het unless the statute under which action is taken by the executive authority itself requires the authority to act honestly or reasonably or upon reasonable grounds, the satisfaction or the opinion or belief of the authority concerned is his subjective satisfaction and it is enough for him to state that he is so satisfied. It must then be presumed that he had acted bona fide in the lawful exercise of his powers and unless the party challenging this action is able to substantiate that he had acted mala fide or without any grounds whatsoever, the Courts cannot call upon the authority or the officer concerned to disclose the material upon which he had based his opinion,
(1) AIR 1918 Mad. 63 belief or satisfaction. It was further contended that even if it was possible to say that "satisfaction" being a firmer state of mind than mere "belief" or "opinion" or "suspicion" had of necessity to be grounded upon some facts then the amendments have even taken care of that by not using the word "satisfied" but merely saying that it would be enough if the authority concerned "is of the opinion" that the apprehension or detention is necessary. It was hela that this argument does not of course take into account the difference that has been made to the jurisdiction of the Court by the Language of Article 98 of the Constitution itself. It will be observed that Article 98 of the present Constitution is radially different from the old Article 170 of the abrogated Constitution of Pakistan or Article 226 of the Indian Constitution. It has given to the Courts the power to give directions to person performing certain functions in connection with the affairs of the Government or local authority to do or to refrain from doing that which the law requires them to do or which it does not permit them to do and to declare acts done by such persons to have been done or taken without lawful authority and as being of no legal effect. In the case of persons detained in custody, however, the power given is to issue a direction to have such a person brought before the High Court so that the Court may "satisfy itself that he is not being held in custody without lawful authority in an unlawful manner." The difference in the language of the provisions of sub-clauses
(a) and (b) of clause (2) of Article 98 is worth noting.' Whilst in the first case the direction is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit as the case may be in the case of detention, the High Court is enjoined upon to "satisfy itself" that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner. This distinction in the terminology of the two clauses of Article 98, was pointed out by this Court in the case Abdul Baqi Baluch PLD 1968 SC 313 for the first time. The expressions "without lawful authority" and 'in an unlawful manner" occurring in sub-clause (b) were not merely tautologous. A definite meaning had, therefore, to be given to each of them, The Constitution it appears, casts a heavy responsibility upon the Court to satisfy itself, with regard to both these two matters. The question, therefore, arises, as to what are these matters. It is agreed that in "without lawful authority" will be comprised all questions of vires of the statute itself as also of the person or persons acting under the statute, i. e., there must be a competent law authorising the detention and the officer issuing such an order must have lawfully vested with the power. But what is it that falls within the expression "unlawful manner"? All matters which fall within the scope of Judicial review apart from questions of vires were covered thereunder.
374. ' The words "in an unlawful manner" in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict parformance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner.
375. ' It would seem, therefore, that by these words, at any rate. So far as the deprivation of the liberty of a citizen was concerned, the Constitution-makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub-clause (b) of clause (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority untrammelled by the formalities or technicalities of either section 494 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of a writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts.
376. The Court must nevertheless in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered. The content of the power vested by the Constitution in the High Court cannot be limited or taken away by a sub-constitutional legislation but the reference to the statute and the other factor mentioned above is rather for determining its true nature, scope and legality.
377. ' This power as has been pointed out in the case of Abdul Baqi Baluch is not co-equal to the power of a Court of appeal or a Court of error or a review committee, for, the Court cannot claim in the exercise of this power to usurp the functions of the authority on which the power has been vested nor to substitute their own decision for the decision of that authority. Nor can the Court insist being satisfied that there were materials upon which it itself would have taken the same action. It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the grounds upon which the action is taken. But if this argument is to be pushed to the extent of saying that the Court can never even ask the authority concerned to disclose the grounds upon which it has acted the Court is unable to agree, for, the Court knew that there were in fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the relevant considerations.
378. ' There can be no doubt that the Court can satisfy itself that the action taken is not a mere colourable exercise of power or a fraud upon the statute. The question, however, that still remains to be considered is as to the statute itself does not require the authority to act upon reasonable grounds but leaves him to act apon his own subjective satisfaction. In view of the provisions of Article 98 of the Constitution that degree of reasonableness has at least to be established which has been indicated in the case of Abdul Baqi Baluch PLD 1968 SC 313. Otherwise if an authority could protect himself by merely saying that he believed himself acting in pursuance of a statute then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful manner. If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even questions of bona fide or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law. Decisions are also not wanting to show that very often the requirement of reasonableness has also been added to the requirement of good faith. Indeed it has even been said that the question of reason bleness would be pertinent in an inquiry as to mala fides. Thus to determine as to whether the officer concerned really believed that facts existed which would bring the case within the statute and honestly intended to put the law into force, the question of reasonableness may well become material but reasonableness in the limited sense indicated in the case of Abdul Baqi Baluch would always be material. In other words when it is said that no reasonable person could have upon such and such material formed the opinion that the person detained had brought himself within the mischief of the statute, in effect the contention is that the officer concerned has in these circumstances acted mala fide in law. (Distinction should, however, be drawn between mala fide in fact or malice in fact and mala fide or malice in law).
379. ' The real question, in every case of mala fides is : Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did. A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore. Is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Court would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner."
10. It is to be pointed out that the High Court in the present case is proceeding under its jurisdiction under Article 201 of the Interim Constitution, which itself authorises it to see whether the confinement of a prisoner was without lawful authority or in an unlawful manner. In this enquiry the element of mala fide can definitely be gone into as the validity conferred in Article 281(2) is not intended to cover mala fide acts. Hamoodur Rahman, C. J., in Miss Asma Jilani's case reproduced a passage from Halsbury's Laws of England, Vol. 7 (Third Edition) page 2b0, for the purpose of showing that in England, post martial law Indemnity Acts, have always been interpreted despite their language to protect only bona fide acts and not mala fide acts. This passage reads as follows :- "The Crown may not issue commissions in time of peace to try civilians by martial law; but when a state of actual war, or of insurrection, riot or rebellion amounting to war, exists the Crown and its officers may use the amount of force necessary in the circumstances to restore order, and this use of force is sometimes termed martial law. When once this state of actual war exists the civil Courts have no authority to call in question the actions of the military authorities ; but it is for the civil Courts to decide, if their jurisdiction is invoked, whether a state of war exists which justifies the application of martial law. The powers, such as they are, of the military authorities cease and those of the Civil Courts are resumed ipso facto with the termination of state of war ; and, in the absence of an Act of Indemnity the Civil Courts may inquire into the legality of anything done during the state of war ; even if there is an Act of Indemnity couched in the usual terms, malicious acts will not be protected."
380. ' The eases of Phillips v. Eyre (1) and Wright v. Fitzgerald (2) are also to the same strain. In the case of Phillips v. Eyre Cockburn, C. J., observed :- "We may rest assured that no such enactment would receive the royal assent unless it were confined to acts honestly done in the suppression of existing rebellion and under the pressure of the most urgent necessity."
381. ' I can raise a similar legitimate presumption in the present case also that the Constituent Assembly did not intend to violate such a golden rule so as to protect even biased, malicious or mala fide acts done under cover of authority of any Martial Law Regulation.
11. When confronted with this aspect of the matter, learned counsel for the respondents argued that sub-Article (2) of Article 281 was, in fact, a jurisdiction ousting provision and, therefore, this Court has no jurisdiction to go into the validity of that which has been made valid by the Constitution. The contention is not correct. It will be noticed that whereas in sub-Article (1) of Article 281, there is an express sentence showing that laws etc., which were being validated were not to be called in question in any Court, but no such sentence exists in sub-Article (2) of Article 281. This omission is conspicuous. Secondly, no doubt this Court would not declare that as invalid which the Constitution has made valid (again to clarify not on the ground of ouster of jurisdiction but on the principle of destruction of cause of action) -but then it is begging the whole question as to what has been validated by the Constitution and what is the exact scope of the relevant validating provision. What this Court at the moment is doing is that it is endeavouring to interpret the aforesaid provision of the Constitution and obviously this jurisdiction and function of the Court has not been destroyed anywhere by any Article of the Constitution.
(1) (1869) 4 Q B D 22 (2) 27 St. Tr. 765
12. Reverting to the argument of the learned Attorney-General that sub-Article (2) of Article 281, did not admit of any implications and exceptions, 1 posed him a question as to what about cases which were still pending and the relevant law covering them, for instance was also a continuing law. Though his answer was that even such proceedings could not be examined by the Court, but obviously, the stand taken by him was not correct. The situation is dealt with at page 252 in Muhammad Yaqub Ali, J.'s judgment in Miss Aama Jilani's case, where his Lordship wrote as follows :- "As seen Article 280 itself provides : all existing laws shall subject to this Constitution continue in force. Martial Law Regulation 78 has been repealed, but if it was continued being repugnant to Fundamental Rights contained in Article 9 it would have been void under Article 7(1). It follows that if the orders of detention passed under Martial Law Regulation 78 are by virtue of Articles 280 and 281 deemed to have been validly made, they would become unlawful from the commencing day, I e. 21st April, 1972. This result would have been avoided only if Martial Law Regulation 78 was continued as an Act of the appropriate Legislature and included in the 1st Schedule to the Constitution. The orders under which Malik Ghulam Jilani and Mr. Altaf Gauhar are being detained will, therefore, be liable to be set aside on the ground that continuation of their detention is in violation of Fundamental Rights."
382. ' This passage clearly shows that if continuous wrongs despite the validity clause under discussion could be gone into in the manner indicated by Muha nmad Yaqub, Ali J , then to argue that sub- Article (2) of Article 28i is all sweeping and does not admit of any implications or exceptions is not correct.
383. Coram non judice
12. I have no hesitation in holding that on the wording of sub-Article (2) of Article 281, orders, proceedings or acts which were coram non judice, even according to (for instance) the very Martial Law Regulation, whereunder they were taken, are not validated because they will not fall within the phraseology employed in the said sub-Article. If for example (confining the discussion to the facts of the present cases), a Military Court was not properly constituted, or its Members or Judges C were not qualified for appointment then it will be a case of total lack of jurisdiction and will not be protected. The phrase any order passed or purported to have been passed in exercise of a power derived from any Martial Law Regulation does not cover the acts of a person who usurps the relevant office and starts passing orders in that garb. See Muhammad Ayub Khuhro v. Pakistan, through The Ministry of Interior Government of Paki tan and 2 others (1). Such a person cannot claim that he was deriving power from any Martial Law Regulation and, therefore, his acts being a total nullity have not been validated by the Constitution. In America also the law is that decisions of Military Tribunals on points of jurisdiction can be subjected to the scrutiny of the Civil Courts. See Yamashita v. Slyer (2) ; Quirin Ex parte (3), by means of a writ of habeas corpus and Duncan v.
384. Kahano Moku (4). In the case of Yamashita v. Styer, it was
(1) PLD 1960 SC 237 (2) (1946) 327 U S I
(3) (1942) 317 U S 1 (4) (1946) 327 U S 304
(5) AIR 1945 P C 38 further held that jurisdiction in this context also comprises the questions of observance of the procedure prescribed by Congress. Some case-law states that in cases where a Judge had a personal pecuniary, proprietary, patronizing or other material interest in the subject-matter of adjudication before him, his proceedings are a nullity in the nature of coram non judice. There are certain exceptions to this rule with which I am at the moment not concerned and I am confining myself in stating the general law in this respect. In some cases, bias or mala fides havea so been held as sufficient to render a trial as corum non judice. See Vassiliades v. Vassiliades (1). In that case the grounds advanced to vitiate a trial were that the District Court was disqualified because of its having remained a receiver against the appellant and also because it had earlier expressed an opinion adverse to the appellant in another case. The Privy Council held that if the petition was well-founded, the trial must be held to have been coram non judice though on factual plan both the pleas were not established. Since on the point of coram non judice, no exception was taken either by the learned Attorney-General or the learned Advocate-General, I do not propose any lengthy discussion of this subject and conclude it by making a simple observation that how far various objections would render a trial to be corum non judice would depend upon the facts and circumstances of each case and no hard and fast rule need be enunciated in this respect. I now pass on to the next element relevant for discussion of the present cases : Other material defects
14. There is a confusion in decided cases as to what extent the decisions of a Court Martial are liable to interference on the ground of material defects in its orders and proceedings. The earliest case of considerable relevance upon the subject is that of Grant v. Gould (2), where it was observed with respect to the jurisdiction of the power of the Supreme Court at page 100 as follows :- "This Court being established in this country by positive law, the proceedings of it, and the relation in which it will stand to the Courts of Westminster Hall, must depend upon the same rules, with all other Courts which are instituted, and have particular powers given them, and whose acts, therefore, may become the subject of application to the Courts of Westminster Hall for a prohibition. Naval Courts Martial, Military Courts Martial, Courts of Admiralty, Courts of Prize, are all liable to the controlling authority which are the Courts of Westminster Hall have from time to time exercised, for the purpose of preventing them from exceeding the jurisdiction given to them."
385. ' In later cases, however, the scope of the power of interference of civil Courts with the determinations of Courts Martial has been considerably narrowed down and it would appear from as recent a case as Rex v. Secretary of State for War exparte Marlyn (3), that the principle to be deduced is that when the finding of a Court-Martial is challenged in a civil Court, all that need to be determined is whether the Court Martial had jurisdiction to try a particular person. This question being answered in the affirmative, the further issue, whether proper rules of procedure had or had not been followed, will not be a matter for the King's Bench to determine.
(1) AIR 1945 P C 38 (2) (1792) 2 H B 169 (3) (1949) 1 All E R 242.
15. Mr. Brohi in his Fundamental Law of Pakistan (1958 Edn.) has at page 654, commented upon this case as taking a very narrow view of the law on the subject. Our Supreme Court has laid down the scope within which interference can be made in the orders of a Milita.y Court passed during Martial Law periods in Ex-Capt. Muhammad Akram Khan v. Islamic Republic of Pakistan and another (1) and also in earlier cases reported in Abdus Sattar Khan Niazi v. The Crown (2) and R. H. Shah v.
386. Crown (3). Some observations in this respect 1st in Muhammad Umar Khan v. The Crown (4) also.
387. The sum total of all these cases is that mere irregularities or illegalities, which do not affect the jurisdiction of the Tribunal, have not to be taken note of. I would respectfully hold accordingly and would observe that such irregularities and illegalities which do not affect the jurisdiction, will be ignored on the principle of validation of purported actions as contained in sub-Article (2) of Article 281 of the Interim Constitution. I have come across cases like Chanappa Shantirappa and others v.
388. Emperor (5), Kali Nath Roy v. King Emperor (6) and Bugga and others v. King Emperor (7), where due to the promulgation of relevant validating laws, the causes of action to challenge actions taken during the Martial Law periods were held to have been destroyed. The proposition that such causes of action can be destroyed has not been doubted by me and all I have endeavoured to find out is as to how far on the wording of the Articles in question, they have been destroyed and what is the extent of validity or immunity granted by the Interim Constitution in that respect. It is obvious that no hard and fast rules can be laid down for this purpose and each case will have to be decided with reference to terminology used and wordings employed in the relevant validating law.
389. The terminology employed in the validating laws referred to in the cases above-mentioned, were vitally different from the scheme of Articles 280, 281 and 295 and, therefore, the said cases can be of no help to interpret the aforesaid articles which are couched in different language and under a different scheme and context. This disposes of the points posed in the last portion of para. 8 of my judgment.
390. Regarding accused in Urdu Digest case (W. P. No, 403 of 1972)
15. Coming to the merits of the Urdu Digest Case, the accused were arrested on 5-4-1972 and were produced before a Military Officer on 6-4-1972, who remanded them to Judicial Custody. On 8-4- 1972, was appointed a Summary Military Court No, 8 consisting of Major Khalid Mahmood. The accused were produced before him on 10-4-1972, when a charge-sheet instead of being read out was handed over to them by the prosecution in his presence. According to Major Khalid Mahmood, the accused at that time had a prepared written statement which was tendered by them in which they had objected to the jurisdiction of the Summary Military Court. The Summary Military Court directed that the written statements should be given over to Major Muhammad Akram, Deputy Assistant Adjutant-General, which was done. The Summary Military Court had not taken oath at that time. The case was adjourned to 11-4-1972, when the accused were again produced. At that time the Court took an oath and recorded evidence in the case. The accused, according
(1) PLD 1969 SC 174 (2) PLD 1954 FC 187
(3) PLD 1951 FC 73 (4) PLD 1953 Lah. 528
(5) AIR 1931 Born. 57 (6) AIR 1921 P C 29
(7) AIR 1920 P C 23 to the Major, struck to their objection of jurisdiction. By this time, the accused had filed a writ petition in this Court in which on 10-4-1972, an order was passed ; the relevant portion of which reads as follows :-
(4) Mr. M. Anwar, learned counsel for the petitioner submits that the challan against the detenus has been filed before the Special Military Court and their trial is to commence on the 11th April, 1972.
391. He has prayed for stay of proceedings before that Court.
(5) In a similar situation, in the case of Mukhtar Rana (Writ Petition No, 223 of 1972), this Court after admitting the matter to a regular hearing, suspended the proceedings before the Special Military Court. The above older was, however, modified by the Supreme Court to the extent that proceedings were allowed to continue but the announcement of the final order was stayed till the decision of the petition for special leave to appeal. This order was passed on the basis of an undertaking by the learned Advocate-General. He has expressed his inability to give a similar undertaking in the instant case. We do not see any material distinction between the case of Mukhtar Rana referred to above and this case. We feel that persons similarly situated should not be treated differently. Accordingly, while declining to stay the proceedings before the Special Military Court, we hope and desire that the Special Military Court will not pass final order till the 12th instant when the matter of interim stay will be taken up in the presence of the Attorney-General."
392. ' The Major says that in deference to the aforesaid wish and desire of this Court, he did not pronounce judgment in the case and adjourned it to 14-4-1972. However, suddenly on 13-4-1972, the Major accelerated the date and summoned the accused through a telephonic direction as deposed to before us by the Police Officer whom we examined in Court. The accused were brought from the Civil Lines Police Station and produced before the Summary Military Court. In the charge- sheet, there were levelled three charges against the accused. First charge was under Martial Law Regulation No, 89(1) (c). The second charge was under Martial Law Regulation No, 89(1) (d) and the third charge was under Martial Law Regulation No, 16(a). The third charge was in the alternative of the first two charges. However, the Summary Military Court found the accused guilty of all the three charges and convicted them accordingly ; by passing the following order :- Finding "The Court find the accused is guilty of all the charges."
393. Sentence "The Court sentence the accused to one year's rigorous imprisonment and Fine Rs, one lakh (Rs, 1,00.000)."
17. It is to be pointed out that even though under rule 90 of the Pakistan Army Act Rules, 1954, framed under the Pakistan Army Act XXXIX of 1952 (hereinafter called the Act), the officer holding the trial (hereinafter called the Court) shall record or cause to be recorded in the English language the transactions of every Summary Military Court, but strangely enough, in the present case, there is no record as to why the accused were called in an accelerated manner on 13.4-1972, when the case already stood adjourned to 14-4-1972. Rule 90 is to be read with rule 78, which prescribes a detailed procedure and lays down the pro forma for maintaining the records which in the instant case, however, does not exist in that detail. In rule 98, it is written that, "if special plea to the general jurisdiction of the Court, or a plea in bar of trial, is offered by the accused, the procedure laid down for general and district Courts-Martial when disposing of such pleas shall, so far as may be applicable, be followed, but no finding by a summary Court-Martial on either of such pleas shall require confirmation." This is to be read with rule 41 which reads as follows :- "41. Special plea to the jurisdiction.-(1) The accused, before pleading to a charge, may offer a special plea to the general jurisdiction of the Court. If he does so, and the Court consider that anything stated in such plea shows that the Court have no jurisdiction, they shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and any address by the accused and reply by the prosecution in reference thereto.
(2) If the Court overrule the special plea they shall proceed with the trial.
(3) If the Court allow the special plea, they shall record their decision and the reason for it, and report it to the convening authority and adjourn. Such decision shall not require any confirmation, and the convening authority shall either forthwith convene another Court for the trial of the accused or order the accused to be released.
(4) If the Courts are in doubt as to the validity of the plea, they may refer the matter to the convening authority and may adjourn for that purpose or may record a special decision with respect to such plea, and proceed with the trial."
18. Reference may also be made to rule 43 which deals with "Plea in bar" and reads as follows :- (There is no question of "Plea in bar" in this case, but the rule is being reproduced to understand the subject in hand in little detail).
394. "43. Plea in bar. -(1) The accused, at the time of his general plea of "Guilty" or "Not guilty" to a charge for an offence, may offer a plea in bar of trial on the ground that -
(i) he has been previously convicted or acquitted of the offence by a competent criminal Court or by a Court martial, or has been dealt with summarily under section 23 for the offence, or that a charge in respect of the offence, has been dismissed as provided in sub-rule (2) of rule 13 ; or
(ii) the offence has been pardoned or condoned by competent military authority ; or
(iii) the time which has elapsed between the commission of offence and the beginning of the trial is more than three years, and the limit of time for trial is not extended under section 91.
(2) If he offers such plea in bar, the Court shall record it as well as his general plea, and if they consider that any fact or facts stated by him are sufficient to support the plea in bar they shall receive any evidence offered and hear any address made by or on behalf of the accused and the prosecution in reference to the plea.
(3) If the Court find that the plea in bar is proved they shall record their finding, and notify it to the confirming authority, and shall either adjourn, or if there is any other charge, against the accused, whether in the same or a different charge-sheet, which is not affected by the plea in bat, may proceed to try the accused on that charge.
(4) If the finding that the plea in bar is proved is not confirmed, the Court may be re-assembled the confirming authority, and proceed as if the plea had been found not proved.
(5) If the Court find that the plea in bar is not proved, they shall proceed with the trial, and the said finding shall be subject to confirmation like any other finding of the Court."
395. ' The forms for recording the proceedings for "special pleas to jurisdiction" or "Plea in bar" are printed at page 410 of the Manual of Pakistan Military Law (1957 Edition). The form reads as follows :- "Plea to the Jurisdiction (rule 41)"
396. ' The accused pleads to the general jurisdiction of the Court on the ground that (set out).- ' Question to the Accused.- ' Do you wish to produce any evidence in support of your plea ? Answer.- ' Witness is examined on oath (or affirmation) (Instruction.-The examination etc., of the witness called by the accused and of any witness called by the prosecutor to reply will proceed as directed below in the case of witnesses to the facts of the trial. The prosecutor will be entitled to reply after the all evidence is given). The Court is closed to consider their decision. The Court (a) overrule the plea and decide to proceed with the trial ; or (b) allow the plea and decide to report to the convening authority, and adjourn ; or (c) are in doubt as to validity of plea and decide to refer the matter to the convening authority and adjourn (or make the following special decisions (set out) and decide to proceed with the trial). The Court is re-opened and the above decision is made known to the accused.
397. ' The Court proceed with the trial or adjourn)."
19. No such from (s) in the instant cases were maintained and no order passed thereon and, as a matter of facts, the plea aforesaid was not dealt with at all. This tantamounts to failure to exercise jurisdiction and failure to hold a lawful and proper trial. A specific attention to this plea was needed because the highest Court of the country namely, Supreme Court of Pakistan, was seized of almost the same plea regarding validity and justification of Martial Law which the petitioners had taken exception to and written articles on and which was being considered as an offence on their part, for which they were being tried. The proceedings in Miss Asma Jilani's case started in the Supreme Court on 16-3-1972. The judgment was reserved and was being expected every day. The case had a great publicity and was being reported in newspapers regularly of which fact I can take judicial notice. Secondly, if the plea was such in the debate of which the leading lawyers of the country took part and the Full Bench of the Supreme Court was examining it, the Major, if he had proceeded to examine this plea would have thought considerably about it and in that event a possibility of the fate of the case being otherwise would not have been out of place. In any case, the pendency of the aforesaid matter in the highest Court of the realm, was definitely an indication to proceed moderately and not to accelerate dates of trial of the accused, especially, when the same subject- matter was pending before a Bench of five Judges of this Court as well. In rule 92 which deals with the assembly of the Court, it is written that, "when the Court, the interpreter, if any, and the officers attending the trial are assembled, the accused shall be brought before the Court, and the oaths or affirmations prescribed in rule 93 shall be taken by the persons therein mentioned." In rule 93 (1), it is written that the Court shall take oath or affirmation in one of the following forms, or in such other form to the same purport as may be according to its religion or otherwise binding on its conscience." The forms of oath are written underneath this rule, but they need not be reproduced in this judgment. In sub-rule (2) of rule 93, it is written that, "after the Court has taken the oath or affirmation directed by sub-rule (1), the Court, or some person empowered by it, shall administer to the interpreter, if any, an oath or affirmation in one of the following forms, or in such other form to the same purport as the Court ascertains to be according to his religion or otherwise binding on his conscience." (The forms of oath or affirmation need not be reproduced at this place). Rule 95 deals with "arraignment" of accused. It states that "after the Court and the interpreter, if any, are sworn or affirmed, as directed by rule 93, the accused shall be arraigned on the charges against. Him." Sub- rule (2) of rule 95 says that, "the charges on which the accused is arraigned shall be read and, if necessary, translated to him, and he shall be required to plead separately to each charge". It is to be noticed that "arraignment" consists of (1) calling upon the accused by his number, rank, name- and description as given in the charge-sheet and asking him, "is that your number, rank, name and unit (or description)? ; (2) reading the charge to him and (3) asking him whether he is guilty or not guily".
20. All what is written above will show that before reading out a charge to the accused he Court is to take an oath. But we have in the statement of Major Khalid Mahmood that the charge-sheet was handed over in his presence to the accused at a time when he had not taken the oath on 10th April, 1972. This would mean that the Court conducted a part of the proceedings before taking the prescribed oath. There is no record of the proceedings of 10th April, 1972, anywhere but the Major admitted before us that such proceedings did take place. He tried to justify the proceedings of 10th April, 1972 by saying that as by that time the accused had not been "arraigned'', therefore, he had not taken the oath. If he had not taken the oath, then I am at a loss to understand as to how he sat in Court and took cognizance of the case ; why the accused were produced before him or received by him ; why he attended to the issuance of a charge-sheet in his presence ; in what capacity he directed that the written reply be handed over to another Military Officer and adjourned the case to 11th April, 1972. The plea taken by the Major in my opinion is an attempt to justify his acts which he performed as a Court without taking the necessary oath on 10th April, 1972. I may point out that I am not holding that in trials under the Army Act, the charge-sheet cannot be served before the start of the trial by any other agency. As a matter of fact, charge-sheets are sometimes required to be served twenty-four hours or thirty-six hours before the trial but then in these cases they are generally served by the prosecution and not through the Presiding Officers of the Courts. If the accused are produced before the Court of trial and it after (of course) verifying their identity, directs issuance of a charge-sheet to them and fixes a date for further proceedings it is an act of the Court and not the prosecution and could not have been performed without taking the oath. My inference from the overall circumstances of the present case is that "arraignment" in this case actually took place earlier though now it is being suggested otherwise. Conversely, if the act of serving a charge-sheet or getting it served on 10th April, 1972, was not an act of a Court but of prosecution, then the Major acted, firstly, as a prosecutor on 10th April, 1972, and then secondly, as a Court subsequently. Even though the wish and desire of this Court as not to pronounce the final order was in the knowledge of the Summary Military Court and it is stared that it was respected and in deference thereto when the proceedings finalised on 11th April, 1972, the Summary Military Court did not announce judgment and rather adjourned it to 14th April, 1972 but still on 13th April, 1972, the Summary Military Court through telephone sent for the accused and announced its judgment. This Court had extended the wish again on 12th April, 1972, but the Summary Military Court did not care to find out as to what orders had been passed by us on or after 12th April, 1972.
398. Since various parties were represented before us (at the time of the repetition of the wish), it is not possible for us to assume that the repetition of our wish and desire was not known to the Summary Military Court or that it could not be known to it. The two orders of this Court, dated 12th April, 1972 in the case are self-explanatory and need not be reproduced here. The charge-sheet (barring one or two concepts), does not contain the precise portions or extracts from the Articles which were allegedly objectionable though there is a general reference to various pages of the periodicals concerned. Even when some Articles were sought to be read out in the Summary Military Court they could not be read properly by the Officer who started reading them and this exercise was left in the middle. A specific plea to this effect was taken in the writ petition but it has not been denied on oath by the officer (s) about whom it was alleged that he had started reading the documents and had left it in the middle. The verdict of guilty and conviction were recorded in respect of all the three charges even though the third charge was in the alternative. Major Khalid Mahmood has submitted that it was a mistake on his part. A suggestion was put to him that was the forthcoming Session of the National Assembly a cause for acceleration of the date of hearing of the case of the petitioners but he denied and stated that the reason rather was that since other connected cases had come up on 13th April, 1972, therefore, the accused of the present case were also sent for on that date. The reason in the absence of any written record has not impressed me. The sudden call of the petitioners from the Lock-up on the telephone was not a fair deal to them. It cannot be doubted that this action could take anybody with surprise and cause a serious prejudice to him.
399. The accused had, according to the original date, still a time for deliberation and making proper arrangements for themselves. The accused were not given a "Friend" to assist them. The Presiding Officer of the Summary Military Court has stated that no such request was made by the accused but since the Court has not maintained any proper record of its proceedings it is not possible for me to accept the bare statement of Major Khalid Mahmood. To me it appears that the Summary Military Court had become touchy to its objection regarding jurisdiction and so much so that when one accused Mujib-ur-Rehman Shami tried to put certain questions in cross-examination to a witness the Major interjected and asked the accused as to whether he had waived the objection.
400. The said accused replied in the negative and, therefore, his questions were shown "under protest".
401. According to the law of the land, at that time, the plea of the accused, as per judgment of the Supreme Court was quite in order and it was only fair on the part of the Summary Military Court to have attended to that plea in the first instance. Last but not the least, cording to law, what a Summary Military Court was required to do was first to pronounce the verdict of "guilty" or "not guilty" and then take or allow evidence regarding character and conduct of the petitioners and then keeping the sane in view pass the sentence. The Major seems to have acted in such a haste that he did nothing of this type and straightaway pronounced both the veroict and the sentences at one and the same time. To cover this illegality, he deposed before us that he had assumed all the accused to be of good ral character and antecedents with no previous convictions etc. Strangely enough, however, this assumption does not seem to have been kept in view, inasmuch as, the sentences passed, were the maximum which under the relevant law, the Major was competent to pass and rather they were far in excess of section 101 of the Pakistan Army Act, because he convicted them also on a charge which was just in the alternative and for which there was no justification to convict when the conviction on the first two primary charges was being made. The Major has deposed that he thought that evidence ood character etc., could be recorded only in cases of Military Personnel but not in the cases of Civilians who were being tried under the Pakistan Army Act. This assumption on his part was unwarranted as Martial Law Reg lation No, 2 required him to follow the same procedure as laid down in that Act. I have in my mind rule 54 of the Pakistan Army Act Rules which states that the Court shall award one sentence in respect of the offence of which the accused is found guilty and such sentence shall be deemed to be awarded in respect of the offence in each charge, in respect of which it be legally given, and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given. It is to be noticed that this Rule cures the wrong sentences nut not the wrong convictions or wrong verdicts of guilty. This is further clear from Note 5 appended to this Rule as contained in the Manual of Pakistan Military Law, which reads as follows :- "The object of the latter portion of this rule is to prevent legal objection to the validity of the sentence. If, for example, an offender has been found guilty by a General Court-Martial on a charge of desertion on active service, and also upon a charge of theft of Government property, a sentence of transportation in respect of the first charge will be valid although a sentence of rigorous imprisonment for five years is the maximum sentence which could have been awarded upon the second charge."
402. ' Judging the overall facts and circumstances of the present cases in the light of the clarification hereinbefore made and the principles enunciated above by me, no doubt is left that the conviction recorded by the Summary Military Court in these cases was clearly in excess of his jurisdiction ; was mala fide and suffered from malice. Re: Zindagi case of Majib-ur-Rehman Shami and Altaf Hassan Qureshi (W. P. 403/1972)
403. 21, The facts of the case of Mujib-ur-Rehman Shami and Altaf Hassan Qureshi, Editor and Printer, respectively, of the Weekly Zindagi, also are similar to those of Urdu Digest case. Here Shami accused was arrested on the 6th of April, 1972 and alongwith his co-accused was remanded to custody till the 10th of April, 1972. On the 10th of April, 1972, they were produced before Major Khalid Mahmood, that is the President of the Summary Military Court, when they filed a written reply in the same manner and under the similar circumstances as the Qureshi Brothers had done in the Urdu Digest case. The case was adjourned to 15th April, 1972, but they were suddenly sent for on telephone on 13th April, 1972 and proceedings in their case were also hastened through in the same manner as in the Urdu Digest case. Convictions and sentences were also announced the same day. They too had been charged for offences under M L. R. 89 (1) (c), 89 (1) (d) and 16 (a). The last charge was in the alternative. However, the convictions and sentences were for all the charges and were of the same nature and extent as in Urdu Digest case. My finding and view in respect of this case is also the same as in the case of Urdu Digest and I have no hesitation in declaring the convictions and sentences of the accused in Zindagi case also to be without lawful authority.
404. ' Re : Punjab Punch case of Muzaffar Qadir and Hussain Naqi (W. P. NO. 404 of 1972).
22. Muzaffar Qadir was styled in Charge-sheet as Printer though his counsel argued that he was actually Manager of Packall Press and Hussain Naqi was Publisher of "Punjab Punch" which was published from the aforesaid Press. The Printer of the Press, according to the learned Advocate was one Sardar Muhammad Sarfraz who owned the Press. Hussain Naqi was arrested on 5-4-1972 and Muzaffar Qadir on 6-4-1972. They were produced before a Military Officer who remanded them to custody till 10-4-1972. On 10-4-1972, they were produced before Major Khalid Mahmood, President of the Summary Military Court. The charge-sheets were served in his presence. The accused produced a written reply which they were directed to produce before another Major, namely, Raja Muhammad Akram, Deputy Assistant Adjutant-General. The case was adjourned to 13-4-1972. On this date, the accused were again produced and hastened through a trial in the same manner as the other accused in other cases. The judgment of this case was also promulgated on 13-4-1972.
405. The nature of charges, convictions and sentences is the same as in the Urdu Digest case. For the reasons given in the aforesaid case, the convictions and the sentences of these petitioners would also be without lawful authority.
406. ' Re : Mukhtar Rana (Writ Petition No, 625 of 1972).
22. The averments in the writ petition do not make out any case for quashing his conviction. There were certain allegations of malice which were duly refuted in the written-statement and I have not been able to find any ground to interfere in this case. The trial was held by a Spe.Ial Military Court and there is nothing on the record before us to find any illegality. Mr. S. M. Zafar raised serious Constitutional points and argued them with great vigour but I have not agreed with him and have refuted them in earlier parts of this judgment. This writ petition merits dismissal.
407. ' Re ! Trial of Mukhtar Rana and his co-accused Muhammad -Ricer Shahid, in a murder case : (Writ Petition No, 223 of 1972) and (Writ Petition No, 33.5 of 1972).
24. The facts of this case have been elaborately given by my learned brother Muhammad Afzal Cheema, J. The main point to be seen in this case is as to whether it should or should not be transferred for trial to an ordinary Criminal Court under Para. 3 of the Martial Law (Pending Proceedings) Order No, 14 of 1972, which was promulgated on 17-4-1972. Learned counsel for the petitioners says that the case of his clients is still pending and should be sent to an ordinary criminal Court, under Para. 3 of P.
0. No, 14 of 1972. On the other hand, the plea of the learned counsel for the respondents is that Para. 4 and not Para. 3 of P.
0. 14 of 1972 applies to this case, because the case before the Military Court, according to their plea, has been decided and disposed of and at the moment is only pending for confirmation by the concerned authority. Paras. 3 and 4 of the aforesaid order read as follows :- 3) Transfer of pending cases.-(1) Every case pending immediately before the appointed day before a Special Military Court or Summary Military Court shall on the appointed day stand transferred to the criminal Court which would have had jurisdiction to try the offence constituted by the facts of that case under the ordinary law.
(2) A case transferred to a criminal Court under clause (1) shall be tried by it in accordance with the procedure applicable to the trial of such a case under the ordinary law.
408. 3) Provision regarding disposal of cases.-Every case which having been decided and disposed of by a Special Military Court is immediately before the appointed day, pending for confirmation, and every petition or application for review pending on such day, shall on or after the appointed day be dealt with and disposed of by the President of Pakistan, if the sentence is one of death, and in all other cases, by the Governor of the Province concerned."
25. The Supreme Court in the instant case had on the 10th of March, 1972, passed the following order :- "As the question of jurisdiction is yet to be decided by the High Court, operation of the stay order is suspended till the disposal of the petition for leave to appeal. The learned Advocate-General undertakes that till then no final order will be passed by the Military Court."
409. ' This would show that the Military Court was under an obligation not to pass a final order in the case. In that view of the matter to argue that the case has been decided and disposed of by the Military Court is not correct. According to law, a case can be said to be decided and disposed of by a Military Court only when, so far it is concerned, it records the verdict of guilty and passes the sentence though the promulgation of sentence may be made after the confirmation by the relevant authority. In the instant case, a plea is being advanced by the State that the case has been (finally) decided and disposed of by the Military Court. If that is so then it is in violation of the undertaking given before the Supreme Court and the aforesaid decision and disposal will be without lawful authority and of no legal consequence against the petitioners. It was argued that the order of the Supreme Court accepting the undertaking of the concerned authority had no legal validity and had no effect on the Military Court. I am afraid it is not possible for me even to think of any such argument not to speak of entering into its discussion. Proceeding, therefore, on the basis that the undertaking given to and accepted by the Supreme Court should have been obeyed, I am of the opinion that the so-called decision and disposal by the Military Court in the face of the Supreme Court's order was without lawful authority and of no legal consequence against the petitioners. The result will be that the case according to law will be considered to be still pending and cannot be treated as a case decided and disposed of. It will thus fall under Para. 3 and not Para. 4 of the Presidential Order 14 of 1972 and is liable to be transferred to the ordinary criminal Court for trial.
26. Before pronouncing the results, I would like to make mention of one argument of the learned Attorney-General and that was that since all the writ petitions quoted Article 98 of the late Constitution of 1962, as the relevant provision under which they have been filed, and despite the promulgation of the Interim Constitution, the learned counsel for the petitioners did not amend (or rather denied the necessity of making amendment at all) and in other words, they did not accept as was evident from their arguments, the validity of the Interim Constitution, therefore, their writ petitions should be dismissed on this short ground, because they were being pressed under a Constitution which was not a legal instrument these days. The short answer is that Article 3 of the Interim Constitution guarantees a basic right to every person to enjoy the protection of law and to be treated in accordance with law and only in accordance with law and lays down that in particular no action detrimental to the life, liberty, body reputation or property of any person shall be taken except in accordance with law. In Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (1) the Supreme Court observed that : - "It may be pointed out that it is the duty of the Court itself to apply the law. The party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts, law has to be given effect to whether or not it has been relied upon by a party."
410. ' Respectfully following that dictum, I would hold that the objection raised by the learned Attorney- General, is no bar to grant relief to the petitioners under the correct law, despite the fact that the petitioners quoted wrong provision of law and considered the same to be applicable from their own point of view to the facts and circumstances of their cases. Even otherwise it is well-settled that quoting a wrong law is no bar in granting the relief on the part of the superior Courts.
26. The upshot of the above discussion is as follows :-
(i) Writ Petition No, 403 of 1972 (Urdu Digest case) is accepted. The convictions and sentences of the accused involved therein are declared to be without lawful authority and having been brought about in an unlawful manner, are hereby quashed. They should be released forthwith if not required in any other case in accordance with law.
(ii) Writ Petition No, 403 of 1972 (Zindagi case) is accepted. The convictions and sentences of the accused involved therein are declared to be without lawful authority and having been brought about in an unlawful manner, are hereby quashed. They should be released
(1) Pi.DI965cC690 forthwith if not required in any other case in accordance with law.
(iii) Writ Petition No, 404 of 1972, (Punjab Panch case) is accepted. The convictions and sentences of the accused involved therein are declared to be without lawful authority and having been brought about in an unlawful manner, are hereby quashed. They should be released forthwith if not required is any other case in accordance with law.
(iv) Writ Petition No, 625 of 1972, regarding Mukhtar Rana about conviction recorded by a Military Court for offences under Martial Law Regulations Nos. 89 and 16(a) has no merit and is dismissed.
(v) Writ Petition No, 223 of 1972 and Writ Petition 335 of 1972 regarding Mukhtar Rana and his co- accused Muhammad Riaz Shahid in a murder case are accepted and it is directed that the said case should be transferred to the ordinary criminal Court for trial.
28. This judgment was in the process of finalisation when on 28th of June, 1972, there appeared a news item indicating that the Government of Punjab has released the convicts in Urdu Digest, Zindagi and Punjab Punch cases. It is to be pointed out that the above writ petitions were filed at a time when the detenus were simply under arrest and the prayer at that time was to set them at liberty. During the pendency of the writ petitions the prosecution hastened with their trials and obtained verdicts of guilty against them and they were convicted and sentenced to various imprisonments and fines. There were then filed additional grounds contending that their trials and convictions, were mala fide ; without lawful authority and of no legal effect against them and that they may be set free. No doubt the release of the convicts in the meantime has taken place. But as lengthy arguments were addressed by all sides regarding validity or invalidity of their convictions (both on Constitutional, legal and factual plan e.g., malice), which (convictions), if legally not declared otherwise, will leave a stigma on them which by the release granted to them does not stand washed off and may be taken into consideration as a circumstance of aggravation when punishing a subsequent offence, therefore, the need on the part of the convicts to ask for the necesary declaration as aforeaid still remains. This is further evident from the actual release order which was formally issued on 5-7-1972 and reads as follows :- "Government of the Punjab Home Department.
411. Order Dated Lahore, the 5th July, 1972, ' No, 3-44-H-Sp1.-I/72 : In exercise of the powers conferred upon him by section 401, Cr. P. C. The Governor of the Punjab is pleased to remit the remaining portion of the sentence of imprisonment of the following persons with effect from 28th June, 1972 and order their release from the same date :-
1. Mr. Ijaz Qureshi ;
2. Mr. Altaf Qureshi ;
3. Mr. Muzaffar Qadir ;
4. Mr. Mujib Shami ; and 5 Mr. Hussain Naqi By Order of the Governor of the Punjab.
412. (Sd.)
413. Khadim Hussain Malik Section Officer Special-I Home Department".
414. ' A perusal of the above order will show that it is not a "full pardon" granted to the convicts but only an order remitting the remaining sentence. However, that portion of my order which directed the release of the convicts will now need no compliance. The parties shall bear their own costs.
415. ' ATAULLAH SAJJAD, J.-This order shall dispose of Writ Petitions Nos. 403, 404, 223, 335 and 625 of 1972.
2. The detenus in Writ Petition No, 403 are Altaf Hasan Qureshi, Iiaz Hasan Qureshi and Mujib-ur- Rehman Shami. Altaf Hasan is the Editor of Urdu Digest and Mujib-ur-Rahman Shami is the Editor of weekly 'Zindgi'. Ijaz Hasan is Publisner of both the Magazines. The detenus in Writ Petition No, 404 tiled by Mrs. Shamim Qadir, are Muzaffar Qadir and Hasan Naqi. The former is the Publisher and Printer of the 'Punjab Punch' and the latter is the Editor.
3. The detenus in these two writ petitions were arrested on the night between 5th and 6th of April, 1972, under Martial Law Regulations 89 and 16(a) by order of Mr. Ghulam Mustafa Khar, dated 5th of April, 1972, who in addition to holding the office of the Governor of Punjab was also the Martial Law Administrator of Zone at the relevant time. The two writ petitions on behalf of these detenus were filed in the High Court on 7th of April, 1972.
4. The detenus were produced before an unnamed Major on 6th of April, 1972, for remand who remanded them to the police custody till 10th of April, 1972. On this latter date, they were produced before Major Khalid Mahmood who had been nominated as President of the Summary Military Court No, 8 by an order purporting to have been issued by the Sub Martial Law Administrator, Military Headquarters, on the same day. This order on the original files is signed by the Major Muhammad Akram "for the Sub Martial Law Administrator."
5. The detenus when produced before Major Khalid Mahmood on 10th of April, 1972, were delivered the charge-sheet which shows that they were charged under Martial Law Regulations 89(1)(c) and 89(1)(d). In the alternative a charge under Martial Law Regulation 16(a) was also drawn up against them. The various heads of charge read as under Ist Charge: M. L. R. 89(1)(c).-Printing reports and remours tending directly or indirectly or calculated to create alarm or despendency among the public.
416. ' In this charge there is a reference to the March and April issues of 'Urdu Digest' their page numbers alongwith the captions of the impugned articles but no culpable portions have been specified.
417. 2nd Charge: M. L. R. 89 (1) (d).-Printing reports and rumours tending directly or indirectly or calculated to bring or attempt to bring into hatred or contempt or to excite or attempt to excite dissatisfaction towards Chief Martial Law Administrator or Government.
418. ' Reference under this head of charge is made to issues of February, March and April, 1972, and certain pages alongwith the captions of the articles have been referred to.
419. 3rd Charge. M. L. R. 16(a)--Acts prejudicial to good order or public safety.
420. ' As stated above, this charge was in the alternative. It is said as against this head of charge that the accused persistently indulged in acts prejudicial to good order and public safety by printing objectionable writings. Against this also reference is made to the issues of February, March and April, 1972 and there is also a reference only to certain pages in these issues. The same is the nature of charges against the detenus in Writ Petition No, 404.
6. The detenus, when they appeared before Major Khalid Mahmood on 10th of April, 1972, produced written statements before him questioning his jurisdiction to try them but the Major directed them to hand over their statements to Major Muhammad Akram, D. A. A. G. The case of Altaf Hasan and Ijaz Hasan, the Printer and Publisher of 'Urdu Digest' (which hereinafter shall, for the brevity, be called as 'Digest Case') was fixed for 11th for evidence. The record of evidence in this case does not bear any date but we are told that evidence was recorded in this case on that day. We had passed an order on 10th of April, 1972, expressing hope and desire that till the hearing of the writ petitions was concluded, no final order shall be announced. Major Khalid Mahmood who tried the detenus, appeared before us and said that in deference to the orders of the High Court he adjourned the 'Digest Case' to 14th of April, 1972, for further proceedings. The case of 'Punjab Punch' had been fixed for 13th of April, 1972. It was heard on that day. The case of weekly `Zindgi' (which shall be called for facility of reference as `Zindgi Case') was fixed for 15th of April, 1972. As would appear from the statement of Inspector Ghulam Rabbani, C. I. A., Lahore, on 13th of April, 1972, a telephonic message was sent to the Civil Lines Police Station by the Summary Military Court to produce immediately the accused in the other two cases, i,e, the 'Digest' and the `Zindgi' cases before the Court. The detenus were produced on that day and were convicted on all the charges I e. Including the charge which was framed in the alternative under Martial Law Regulation 16(a). Sentence was announced and promulgated which was confirmed by Major-General S. A. Z. Naqvi, Sub-Administrator Martial Law Sector 3, on 18th of April, 1972. Altaf Hasan Qureshi and Mujibur Rehman the Editors of `Urdu Digest' and that of weekly `Zindgi', respectively were sentenced to one year's R. I. And a fine of Rs, 1,00,000 (one lac) each. Ijaz Hasan who was the publisher of both 'Urdu Digest' and `Zindgi' was sentenced to one year's R. I. And a fine of Rs, 1,00,000 (one lac) in each case. Muzaffar Qadir and Hussain Naqi were also convicted on all the charges including the one framed in the alternative under Martial Law Regulation 16 (a) and were sentenced to one year's R. I. Each and a fine of Rs, 1,00,000 (one lac) each.
7. It may be mentioned that on 12th of April, 1972, when the Bench of this Court met, a request was made by Mr. Ihsanul Haq the learned standing counsel for the Central Government, on behalf of the learned Attorney-General, that because of his pre-occupation, the case should be adjourned for three weeks. We acceded to this request and when asked to contact the learned Attorney- General in order to find out as to whether the direction issued by this Court shall be respected, Mr Ihsanul Haq stated at the bar that the learned Attorney-General shared the hope and desire of the Bench that the final order in the case shall not be announced, The Bench after incorporating the assurance given on behalf of the learned Attorney-General, affirmed in its order the hope and desire expressed on 10th of April, 1972. The morLing papers of 13th carried this news conspicuously.
8. Mukh tar Rana who had been elected as a Member of the National Assembly from a constituency in Lyallpur, is the detenu in Writ Petitions Nos. 223 and 625 of 19//2. He had been accused of the commission of the offences under sections 148, 302/149, P. P. C. And was granted bail before arrest by Muhammad Afzal Cheema, J. By his order, dated 17th of February, 1972. The case was then at the investigation stage. A charge under Martial Law Regulation 16(a) was also added later on and the case was sought to be heard by a Military Court. The Supreme Court had by then granted special leave to appeal in the case of Asma Jilani and in view of the observations contained in the admitting order the question of the legality of the Martial Law regime and of the vires of the Martial Law Regulations and Orders was also raised before Muhammad Afzal Cheema, J. His Lordship in view of the importance of the matter requested the Chief Justice to form a larger Bench with the result that a Bench of three Judges comprising of Muhammad Afzal Cheema, J.
421. Muhammad Afzal Zullah, J. And myself was formed. The Bench after hearing the Advocate-General refused to recall the order of bail.
422. ' Writ Petition No, 223 was moved on the next day on the ground that Mukhtar Rana was being asked to appear before a Mili ary Court to answer the charges against him under section 302, etc. And Martial Law Regulation 16(a). The Bench after preliminary hearing stayed proceedings before the Military Court and gave notice to the Advocate-General for 13th of March, 1972. The State in the meanwhile moved the Supreme Court for suspension of the order passed by this Bench.
423. Muhammad Yaqub Ali, J. Suspended the order, but on the basis of an assurance given by the learned Advocate-General directed that the Military Court shall not pass any final order. The order of his Lordship is reproduced below :- "As question of jurisdiction has yet to be decided by the High Court, operation of the stay order is suspended till the disposal of the petition for special leave to appeal. The learned Advocate- General undertakes that till then no final order will be passed by the Military Court."
9. Muhammad Riaz Shahid petitioner in Writ Petition No, 335 is a co-accused with Mukhtar Rana in the case registered under sections 148 and 302/149, P. P. C. And Martial Law Regulation 16 (a). He said that according to a news item in the "Daily Musawat" of 23rd of March, 1972, he was required to appear before the Martial Law Authorities on 27th of March, 1972. He tiled the above writ petition on 28th of March, 1972, and prayed that the order of the Governor as Martial Law Administrator Zone 'C' directing his trial before a Special Military Court be declared without lawful authority and the Military Court should be restrained from taking any proceedings against him.
10. Mukhtar Rana was arrested on 24th of March, 1972, under Martial Law Regulations 89 and 16(a), for having delivered a speech on 14th of March, 1972. He was convicted by a Special Military Court and sentenced to five years' rigorous imprisonment. Writ Petition No, 625 was filed on 9th of May, 1972 challenging the legality of this conviction.
11. The Supreme Court delivered its judgment in the case of Asma Jilani and Zarina Altaf Gohar on 25th of April, 1972, and held that Asha Muhammad Yahya Kban was a usurper and had no right to promulgate Martial Law in the country. Their Lordships said that there was a Constitution in existence at the relevant time and the only legal course open to Field Marshal Muhammad Ayyub Khan, who had called upon Agha Muhammad Yahya Khan to perform his constitutional duty to restore order in the country, was to hand over the Government to the Speaker of the National Assembly. In view of these findings the vires of usurper's laws became questionable and their very source was held to be illegal and tainted. His Lordship the Chief Justice of Pakistan categorised the action that couid be saved under the principles of condonation-
(1) all transactions which are past and closed,
(2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order ,
(3) all acts which tend to advance or promote the good of the people, and
(4) all acts required to be done for the ordinary, orderly running of the State and all such measures which would establish or lead to the establishment of, the objectives mentioned in the Objectives Resolution of 1949.
424. ' His Lordship clearly observed that he would not condone any action which would help to entrench the usurper firmly in his seat of power or directly help him to run the country contrary to its legitimate objectives. It is clear that the usurper had no right to set up Martial Law Iribunals to try civilians for offences triable by the ordinary Courts which were functioning in the country throughout. The open Court-rule adumbrated in ex parte Milligan's case (1) is a monumental judgment ensuring the right of the citizens of a free country to trial by the ordinary Courts of the country. We find that in England and in America the right of a civilian to be tried by civilian Courts was always upheld when these Courts were functioning, even during the Martial Law. During the reign of Edward II, the Earl of Lancaster after his defeat at the hands of King's army was captured condemned by Court-Martial to death. He was beheaded. The proceedings were reversed on petition for error in the first proclamation of Edward III. It was declared :-
(i) that at the time of peace no men are to be adjudged to death for treason or other offence without being arraigned necessary.
(ii) that when the King's Courts are open, it is a time of peace in the judgment of law.
425. ' It is somewhere said that King John was compelled to sign the Magna Charta in 1215 so that this Regal power could be reduced to the legal power in matters of imprisonment.
12. Martial Law is something indulged in and suffered as of necessity. It has been condemned by jurists as contrary to the Fundamental Laws of a free country and subversive of the liberty of the citizen. The penal provisions promulgated by it are applicable to the Army Personnel or to the opposing Army in the manner as the Commander directs but an ordinary citizen, even in time of war, is governed by the ordinary law of the land. The exercise of Martial Law can never be countenanced in time of peace. The Supreme Court had found that actually there was no occasion
(I) 18 L ed 281 for proclamation of Martial Law throughout the country and that there was no insurrection and rebellion of a magnitude which warranted imposition of Martial Law.
13. American Supreme Court has firmly laid down the rule that when the laws can act every other mode of punishing supposed crimes is obnoxious to the notions of liberty and good Government, I have referred in my interim order to the case of ex pate Milligan. He was a resident of a State of Indiana and was arrested from there on five charges, namely :-
(1) Conspiracy against the Government of United States,
(2) Affording aid and confort to the rebels against the authority of the United States,
(3) Incitement of insurrection,
(4) Indulging in disloyal practices, and
(5) Violation of the laws of war.
426. ' The gravament of the charge was that during the time of war he with others, had set on foot a secret military organization for the purposes of overthrowing the Government. He was sentenced to death by a Military Commission. Chief Justice Chase announced the order of the Court on 13th of April, 1866, holding that the Military Commission had no jurisdiction to try and sentence Milligan and issued a writ of habeas corpus as prayed by the petitioner. The opinion of the Court was delivered, however, more than nine months after this announcement on 17th of December, 1886by Justice Davis. The Court took judicial notice of the fact that in Indiana there was no opposition to the federal authority and the civil Courts were open to hear criminal accusations, and observed at page 295 as under :- "The power of punishment is alone through the means which the laws have provided for that purpose, and they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crime may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured ; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify the military trial, it is not our province to interfere ; if there was not, it is our duty to declare the nullity of the whole proceedings."
427. ' It was further observed :- "Every trial involves the exercise of judicial power ; and from what source did the Military Commission that tried him derive their authority? Certainly no part of the judicial power of the country was conferred on them ; because the Constitution expressly vests it `in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a Court ordained and established by Congress. They cannot justify on the mandate of the President ; because he is controlled by law and has his appropriate sphere of duty, which is to execute, not to take, the laws ; and there is no unwritten criminal code to which resort can be had as a source of jurisdiction."
428. ' Dealing with the argument that in time of war the Commander of the Armed Forces has the power within the lines of his Military District to suspend all civil rights and subject citizens as well us soldiers to his will, the Court observed at pages 296 and 297 :- "If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute Military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules.
429. ' The statement of this proposition shows its importance ; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial Law, established on such a basis, destroys every guaranty of the constitution, and effectually renders the 'military independent of and superior to the civil power' the attempt to do which by the King of Great Britain was deemed by our fathers such an offence, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together ; the antagonism is irreconcilable, and, in the conflict, one or the other must perish.
430. ' This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln ; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate."
431. ' Another case which deals with the open-Court-rule is that of Duncan v. Kahanamoku (1). In that case sections 5 and 67 of Hawaian Organic Act came in for interpretation. The Governor of Hawaii on 7th of December, 1941, immediately following the surprise air attack by the Japanese on Pearl Harbour declared Martial Law under section 67 of the Hawaiian Organic Act. This action he was authorised to do in case of rebeilian, invasion or imminent danger or when the public safety required. The declaration of Martial Law to which approval of the President was given on December 9, 1941, said that during the emergency and until danger of invasion was removed, the Commanding General would exercise all the powers normally exercised by the Governor and the Judicial Officers. Both civil and criminal Courts were forbidden to summon jurors and witnesses and to try cases. The Commanding General established military Tribunals to take the place of the Courts. These were to try civilians charged with violating the laws of the United States and of the Territory and the rules of evidence and the procedure of Courts of law were not to control the military trials. In imposing penalties the military Tribunals were not confined to the penalties authorities by the normal law. The filing of writs of habeas corpus by petitioners and their attorneys was prohibited and a bar was placed on the jurisdiction of the Judges to decide such petitions.
432. One of the detenus Harry E. White was arrested on 20th of August, 1942, when the civil Courts were still forbidden to summon jurors and to exercise criminal jurisdiction. The
(1) 90 L ed 688 charge against him was of embezzling the stocks belonging to another civilian. This offence was punishable under the ordinary law of the land. Duncan the other detenu was arraigned on 4th of February, 1944, for having engaged in a brawl with two armed Marine sentries.
433. This offence was also punishable under the Civil Law. By that time the Courts had been authorised to exercise their normal jurisdiction but they had no authority to try criminal accused of violations of military orders. Both the detenus were convicted.
434. ' These convictions were challenged before the District Court which held that the trial of the petitioners was void and ordered their release. The Circuit Court of Appeal reversed the order of the District Court and held that the trials were valid. It assumed that the establishment of Martial Law meant a total military government completely displacing or subordinating the regular civil Courts.
435. The matter then came before the Supreme Court.
436. ' It was conceded that notwithstanding the internal insurrection, the civil Courts were capable of functioning but the Martial Law Authorities had stopped them from functioning as a measure of precaution. The majority judgment in this case forcefully underlined the right of a citizen to be tried by an ordinary Court even in an atmosphere of insurrection and turmoil provided the civil Courts were capable of functioning. I would like to quote from page 701 of the report. Murphy, J. Observed :- "Abhorrence of military rule is ingrained in our form of government. Those who founded this nation knew fully well that the arbitrary power of conviction and punishment for pretended offences is the hallmark of despotism. See The Federalist, No,
83. History had demonstrated that fact to them time and again. They shed their blood to win independence from a ruler who they alleged was attempting to render the 'military independent of and superior to the civil power' and who was, 'depriving us of the benefits of trial by jury.' In the earliest state constitutions they inserted definite provisions placing the military under 'strict subordination' to the civil power at all times and in all cases. And in framing the Bill of Rights of the Federal Constitution they were careful to make sure that the power to punish would rest primarily with the civil authorities at all times. They believed that a trial by an established Court, with an impartial jury, was the only certain way to protect an individual against oppression. The Bill of Rights translated that belief into reality by guaranteeing the observance f jury trials and other basic procedural rights foreign to military proceedings. This supermacy of the civil over the military is one of our great heritages. It has made possible the attainment of a high degree of liberty regulated by law rather than by caprice. Our duty is to give effect to that heritage at all times, that it may be handed down untarnished to future generations."
437. ' Again, at pages 703 and 704 we find the following observations :- "From time immemorial despots have used real or imagined threats to the public welfare as an excuse for needlessly abrogating human rights. That excuse is no less unworthy of our traditions when used in this day of atomic warfare or at a future time when some other type of warfare may be devised. The right to jury trial and the other constitutional rights of an accused individual are too fundamental to be sacrificed merely through reasonable fear of military assault. There must be some overpowering factor that makes a recognition of those rights incompatible with the public safety before we should consent to their temporary suspension. If those rights may safely be respected in the face of a threatened invasion no valid reason exists for disregarding them. In other words, the civil Courts must be utterly incapable of trying criminals or of dispensing justice in their usual manner before the Bill of Rights may be temporarily suspended. "Martial Law (in relation to closing the Courts) cannot arise from a threatened invasion. The necessity must be actual and present ; the invasion real, such as effectually closes the Courts and deposes the civil administration."
438. "Civil liberties and military expediency are often irreconcilable. It does take time to secure a grand jury indictment, to allow the accused to procure and confer with counsel, to permit the preparation of a defence, to form a petit jury, to respect the elementary rules of procedure and evidence and to judge guilty or innocence according to accepted rules of law. But experience has demonstrated that such time is well spent. It is the only method we have of insuring the protection of constitutional rights and of guarding against oppression. The swift trial and punishment which the military desires is precisely what the Bill of Rights outlaws. We would be false to our trust if we allowed the time it takes to give effect to constitutional rights to be used as the very reason for taking away those rights. It is our duty, as well as that of the military, to make sure that such rights are respected whenever possible, even though time may be consumed."
439. ' There are weighty pronouncements ensuring the right of a citizen of a free country to be treated according to law and to have the protection of law. In all humility and with the greatest respect, I agree with above observations. To concede to the men of Arms, the authority to try civilians for offences punishable under the ordinary law, when the civil Courts are capable of functioning, is to give them an awful power derogatory to the fundamental liberties of the people. These liberties are the mainspring of that deep sense of patriotism which prompts a man to give his all for his country.
440. It is, therefore, clear that on the basis of what has been said in the judgment of the Supreme Court delivered on 20th of April, 1972, and because of the open Court rule enunciated in the American cases noted above, the writ petitions were bound to succeed. If their impugned writings, speeches and actions fell within the mischief of the ordinary criminal law of the country, the detenus were liable to be prosecuted in Courts of ordinary jurisdiction, but there was no legal justification for their trial under the Matial Law Regulations enforced by the usurper against the fair procedure guaranteed to them under the law.
441. ' The Supreme Court delivered its judgment on 20th of April, 1972, and the Interim Constitution of Pakistan, which was passed by the National Assembly on 17th of April, 1972, came into force on 21st of April, 1972. A state of Emergency was declared on the same day and Fundamental Right No, 9 which deals with safeguards as to arrest and detention was suspended by that notification. A subsequent notification published on 30th of April, 1972, suspended Fundamental Rights Nos. 9, 12, 13, 14, 15, 16, 20, 21, 22 and 24 of the Constitution. The National Assembly validated at the Martial Law Proclamations, Regulations and Orders, including the Presidential Orders and other legal instruments connected therewith under Article 281 of the Interim Constitution which is reproduced below :- Article 281. (1) All Proclamations, President's Order, Martial Law Regulations, Martial Law Orders, and all other laws made as from the 25th day of March, 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
(2) 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, on or after the twenty- fifth day of March, 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.
(3) No suit 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 powers referred to in clause (2), or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
442. ' It has been, therefore, urged on behalf of the State that notwithstanding the judgment of the Supreme Court, Article 281 completely bars our jurisdiction to look into the legality or otherwise of the convictions passed on or proceedings taken against the detenus and that the intention of the Legislature is to completely efface our jurisdiction in respect of these matters.
14. Mr. M. Anwar appeared on behalf of the detenus mentioned in Writ Petition No, 403. He said that the National Assembly was not sovereign in the sense in which a Constituent Assembly is. He said it is the creation of the Legal Framework Order which was promulgated by the usurper and if this order has to be sustained on the basis of necessity, the present National Assembly should be considered to be a successor of the National Assembly formed under the Constitution of 1962.
443. According to him it could not go beyond making certain amendments in the Constitution of 1962 for making provision for adult franchise. Etc. He further said that these amendments could only be made by two-third majority as provided in Article 209 of the 1962 Constitution. Mr. M. Anwar further said that the present National Assembly comprised less than half of the members elected on the basis of L. F.
0. And even on that account it lacked the authority to give a Constitution to Pakistan. It is his further assertion that the preamble to the Constitution which was passed in the shape of an Objectives Resolution by the first Constituent Assembly in 1949 contains guidelines for the framing of the Constitution and any law that does not fit in with those guidelines, even if passed by an Assembly dealing with the constitution making, has to be struck down. He said that the validation of the oppressive laws enacted by the usurper and the saving of the actions done and sentences passed thereunder militates against the Objectives Resolution. He, therefore, urged that even on this account Article 281 should be held to be unconstitutional.
444. 15, Mr. M. Anwar further urged that validation of the Martial Law Regulations, etc. And the sentences passed theieunder was an exercise of the powers under a Bill of Attainder for which there was no provision in our Constitution. Another argument which be developed was that according to the Supreme Court judgment, the law-making by the Martial Law Authorities was unauthorised and any conviction and sentence passed by the Martial Law Courts were nullity in the eye of law. He, therefore, said that when the convictions w re passed, the detenus actually were not guilty of any offence under the law of the realm and that by validating these sentences, the National Assembly has violated the mandatory and categorical declaration contained in Article 11 of the Interim.
445. Constitution and Fundamental Right No, 4 contained in its predecessor against ex post facto penal action.
16. Both Mr. M. Anwar and Mr. Khalid Ranjha, the latter being the counsel in Writ Petition No, 404, asserted that the alleged writings were innocuous and were not actionable but even if they were, their clients were to be prosecuted under the ordinary law. This Court is not concerned with the guilt or innocence of the detenus but we have to consider whether the military tribunal had any lawful power to try the detenus for the offences charged against them. Reference in this connection may be made to Matter of Yamashita (1).
446. ' Mr. S. M. Zafar did not go so far as to say that the Constitution of 1962 was still in force but he said that the present National Assembly although...Entrusted with the task of framing Constitution, in not sovereign and has to work under the L. F.
0. It was his case that even a Constituent Assembly is not a perfectly sovereign body and in this connection he referred to the following observations of Muhammad Munir, C. J. In the case of Maulvi Tameezud Din (2) :- "As for the question whether the Constituent Assembly is a sovereign body it is a mistake to suppose that sovereignty in its larger sense was conferred upon the Constituent Assembly, or that it could function outside the limits of the Indian Independence Act, Mr. Zafar's contention was that according to para. 20 of the L F.
0. The Fundamental Rights and the independence of judiciary in the matter of dispensation of justice had to be guaranteed by the National Assembly. He said that by validating the Martial Law Regulations, etc. The Assembly has travelled beyond its mandate given by the L. F.
0. And violated the mandate given in para. 20 of L. F.
447. 0.
16. With regard to Writ Petition No, 223 he asserted that the Supreme Court had said that the Military Court will not pass any final order but this was done in violation of the order of the Supreme Court passed on the undertaking of the learned Advocate-General. We questioned the learned Attorney- General on this aspect of the case and we were told that the Special Military Court constituted for the purposes of this case, had actually passed a sentence and the matter was pending confirmation which was to be done by the President or the Governor under the Presidential Order No, 14 issued on 18th of April, 1972. According to para. 3 of this Order all cases pending immediately before the appointed
(1) 90 I. Ed 499 (2) P D 1955 FC 240 date i,e, 21st day of April, 1972, are to be transferred to the ordinary criminal Courts. Para. 4 deals with cases which after the decision of the Special Military Court are awaiting confirmation. The confirmation where a sentence of death has been passed is to be done by the President and in case of lesser sentences, by the Governor of the Province concerned. No further facts were given to us with regard to Muhammad Riaz Shahid petitioner in Writ Petition No, 335.
18. Writ Petition No, 625 is directed against the conviction of Mukhtar Rana under Martial Law Regulations 16-A and b9 wbereunder he was awarded a sentence of five years' R. I. It was submitted with regard to this writ petition that since the High Court had released him on bail in the earlier case, the subsequent prosecution was mala fide and could not be sustained. According to the learned counsel the mala fides further accentrated because of the haste with which the proceedings in this case were finalised on 10th of April, 1972. Mukhtar Rana was arrested on 24th of March, 1972 and Civil Miscellaneous No, I of 1972 was filed in Writ Petition No, 223 for grant of bail on 8th of April, 1972. This application was fixed before the High Court for 11th of April, 1972, but the Military Court convicted him on 10th of April, 1972. Mr. Zafar did not ask for the summoning of the record in this case and confined his argument only to the impugned order and raised the question of mala fides only.
19. I have no hesitation in repelling the argument of Mr. M. Anwar that the Constitution of 1962 was in existence after 21st of April, 1972. It is true that in his judgment in Asma Jiliani's case Mr. Justice Salahud-din of the Supreme Court has said that the Constitution of 1962 was lying dormant and with the judgment of the Supreme Court it automatically revived, but his Lordship further made a significant observation and said that the Constitution of 1962 held the filed unless it had been replaced by a new Constitution. The Chief Justice indicated in his judgment in Asma Jiliani's case that L. F. O. Being intended to usher in democracy in the country had to be saved on account of necessity. The L. F. O. Is, therefore, a legal document under which the members of the present National Assembly were elected with the specific object of framing a Constitution for the country.
448. The Constitution of 1962 against which o there was a lot of agitation before Martial Law was imposed on 25th of D March, 1969, by Agha Muhammad Yahya Khan has ceased to be a legal document for the political reason that it lacks the support of the people and for the legal reason that under Article 281(1) of the Interim Constitution, all proclamations including the proclamation of imposition of Martial Law issued on 25th of March, 1969, by which the Constitution of 1962 was abrogated, have been validated. The present National Assembly had come into being with a clear mandate of the people to frame a Constitution and the argument that it is a body brought into being with the limited purpose of bringing about amendments in the Constitution of 1962, is completely lacking in legal force. By the passage of the Interim Constitution a new era has been ushered in the country, and to suggest that the Constitution of 1962 is still in existence is to ignore political realities.
20. Mr. M. Anwar's next argument was that the present National Assembly does not represent the will of the entire people of Pakistan as the larger limb of the country has been cut off by the Indian aggression and more than half the members could not be present for this reason. This argument is hypertechnical and has no force in it. If we accept this argument the logical conclusion would be that the whole administration of Pakistan would stand paralysed. The elected representatives of the people in this part of the country shall be deprived of their franchise and will be debarred from performing their duties so long as the representatives of East Pakistan do not join them. This is an impossible argument. The country has to run. We have no control over East Pakistan which has now seceded from us as a result of Indian aggression. This, however, cannot debar us from putting our house in order in this part of the country. The National Assembly has fixed a quorum and the pre- requisite for convening a session of the National Assembly is that the quorum should be complete before it starts functioning. That is the only legal precondition.
21. Mr. M. Anwar also criticised the way the present Constitution was passed. He said, that the Interim Constitution was rushed through in three days by a resolution to which no amendments could be moved by any member of the National Assembly except the mover of the resolution itself.
449. He said that the members were not permitted to perform their duties freely and the Constitution was passed in an atmosphere which savoured of bargaining between the treasury benches and the opposition. This argument is again besides the point. The members of the National Assembly are conscious of their' privilegec. The time before them was short. The omninous shadows of the Martial Law were hovering over the country. They were naturally anxious to get rid of these shadows so that the silver lining of democracy and freedom should appear on the political horizon. They were the best Judges of their actions and if no protest came from them with regard to the procedure, it is not for M. M. Anwar now to raise this matter before us. The proceedings of a National Assembly are privileged and the Courts cannot interfere in them. This is a domain completely shut off to our jurisdiction.
22. It was also urged during the arguments that the provisions of Article 281 are of legislative nature and if we find them in conflict with the constitutional provisions guaranteeing equal protection of law to the citizens we are entitle to strike them down. I may say that Mr. Zafar's theroy that the present National Assembly is a creation of the Legal Framework Order and has to work within the four corners of its provisions, is devoid of force. L. F. O. Has come out of the same abnoxious and incompetent law making source of the usurper but has to be accepted and sustained as a measure beneficial to the people of Pakistan because it has brought into being a National Assembly elected on the basis of adult franchise. Once the National Assembly has come into being the representatives of the people have the authority to lay down their own procedure and to frame a constitution according to the consensus of their opinion. In any case, Mr. Zafar was not able to say how para. 20 has been violated except for the bare assertion that the validation of the Martial Law Regulations, etc. Amounted to violation of the mandate of the people and was against the directions given to the National Assembly in the L. F. O. I may observe here that the usurper was ruling this country from 25th of March, 1969. He passed good laws as well as bad laws. The anxiety of the present National Assembly was to save the country from a legal vacuum and break down of administration. It validated the laws of the usurper. We cannot question the policy of this wholesale validation. The purpose perhaps was to keep the continuity of the laws and administration in the country and give immunity to the functionaries who acted under the belief that they were functioning under a proper legal order. The reference by Mr. Zafar to the case of Maulvi TamizudDin is not apt because the observations relied upon by him were made in the light of the decision in that case that the laws passed by the Constituent Assembly required the assent of the Governor- General. Mr. Justice Muhammad Yaqub Ali, has, however, observed in his judgment in Asma Jiliani's case that case was not correctly decided and the relevant provisions of the Indian Independence Act had not been correctly interpreted by the then Federal Court.
450. Article 281 has the complexion of a legislative measure but it cannot be said with any legal force that the National Assembly was debarred K from enacting such a measure in the Constitution In Abdul Aziz v. ProvinceK of West Pakistan (1), Cornelius. J., as he then was, while referring to Article 7 of the Constitution of 1956, observed as under:- "While constitutions are largely concerned with laying down principles which shall be followed in the making of laws, there is nothing to prevent a constitution-making body from making law of a special nature dealing with a special subject in the course of making a Constitution. It seems perfectly clear that in Article 7 there are inc uded general statements of conditions affecting the questions of arrest and detention of persons, under all sub-constitutional laws relating to that subject. In so doing, the Article makes fresh law, of a detailed character, belonging to the category of statute law, albeit enacted in the Constitution."
451. ' See also Khizar Hayat Tiwana's case (2) where it was that a Constituent Authority may at any time encroach on the sphere of a Legislature which is subject to its constituent authority.
23. The argument of Mr. Muhammad Anwar that by validating Martial Law Regulations, etc. By Article 281, the National Assembly violated the principles contained in the Constitution against post facto laws and their action amounted to passing Bill of Attainder or a Bill of Pains and Penalties, has no force. The Martial Law Regulations wer considered to be a part of the legal order of the country and the trials held thereunder were also considered to be valid when they were held. It was on account of the judgment of the Supreme Court that the whole legal system of Martial Law was found to be incompetent and without authority. The National Assembly in their own wisdom have validated these laws and condoned the actions taken thereunder. It is, therefore, not a case where new offences were created for punishing people by legislative measure. In my view, therefore, there has been no violation of the prohibition against ex post facto laws nor does Article 281 amount to, punishment by legislation.
24. The next attack of Mr. M. Anwar on Article 281 was that it violated the Objectives Resolution passed by the Constituent Assembly of Pakistan in 1949 and which had formed the part of all the three Constitutions promulgated in this country, including the present Interim Constitution. He said that this validation offended against the principles of equality before law and equal pro ection of law ensued under the Objectives Resolution. The learned Attorney-General said that the Objectives Resolution was a preamble and could not be placel at par with the provisions of the Constitution. It was, according to him, a declaration of objectives and not justiciable by the Courts of law.
(I) PLD 1958 SC (Pak.) 499 (2) PLD 1956 FC 200 It is too late in the day for the learned Attorney-General to make this assertion. The Objectives Resolution was passed by the Constituent Assembly which consisted of persons who had actually fought for the creation of Pakistan and more than whom no one was conversant with the motive forces behind the creation of this country. It is the quintersence of their aspirations and crystalises the objectives of the freedom for which the Muslim nation fought. In interpreting the Constitution of Pakistan. Its historical setting is a very valuable guide to understand its true import. It is said at page 19 of Maxwell's Interpretation of Statutes (Eleventh Edition) that the interpreter in considering the historical setting of a law should put himself in the position of those whose words he is interpreting.
25. It is clear from the reading of the Objectives Resolution passed by the first Constituent Assembly whose members were associated with the struggle for freedom directly under the leadership of the Father of the Nation, that they did not want to give a piece of advice only by passing this Resolution. It is not a document ensuring doctrines forcefully expressed but intended to be abandoned. It is not an array of hollow shibboleths. It is the conscience of our body politic and furnishes the very foundation for raising the constitutional edifice of Pakistan. After a close reading of the Objectives Resolution I have come to the conclusion that the Founding Fathers, if I may use this American expression, laid down the following immutable and unchangeable principles for framing the Constitution of Pakistan:-
(1) The State shall exercise its powers and authority through the chosen representatives of the people,
(ii) That Pakistan shall be a federation,
(iii) That the Constitution shall guarantee Fundamental Rights including the right such as equality of status and of opportunity, before law, freedom of thought, expression, belief, faith, worship and association, and social, economic, and political justice, subject to law and public morality, and
(iv) That the independence of the judiciary shall be fully secured.
452. ' No constituent Assembly or National Assembly, which comes into being in Pakistan for framing a Constitution, can frame a Constitution in disregard of these precise principles. The above mentioned four principles called out by me from the Objectives Resolution, like the Fundamental Rights, are the transcendental part of the Constitution.
26. The Father of the Nation on a number of occasions firmly reiterated that the Constitution of Pakistan shall be framed on democratic lines. In a Broadcast talk to the people of the United States of America on Pakistan recorded in February, 1948, he said- "The Constitution of Pakistan has yet to be framed by the Pakistan Constituent Assembly. I do not know what the ultimate shape of this Constitution is going to be, but I am sure that it will be of a democratic type, embodying the essential principles of Islam. Today, they are as applicable in actual life as they were 1300, years ago. Islam and its idealism have taught us democracy. It has taught equality of man, justice and fairplay to everybody. We are the inheritors of these glorious traditions and are fully alive to our responsibilities and obligations as framers of the future Constitution of Pakistan ..........................
453. ' In Special Reference No, 1 of 1957 (1), a reference was made to the Objectives Resolution. The question before the Supreme Court was whether a Governor could dissolve an Interim Provincial Assembly functioning under Article 225 of the Constitution. The Supreme Court gave the answer in the negative observing:- ' Such dissolution could not but lead to the establishment of a completely irresponsible Government by the President or Prime Minister at the Centre or by the Governor or the Chief Minister in a Province for an indefinite period, a Government which not only uproots the foundations of our Constitution but is also opposed to the Preamble which states, inter alia, that the new State is to exercise its powers and authority through the chosen representatives of the people." (at page 251).
454. ' The Chief Justice of the Supreme Court held in Asma Jiliani's case that the authoriry exercisable by the people within the limits prescribed by Allah is a sacred trust. In the same case Sajjad Ahmad Jan, J. While observing that our grund norms were derived from our Islamic Faith, observed as under:- "These grund norms are unchangeable and are insparable from our policy. These are epitomised in the Objectives Resolution passed by Constituent Assembly of Pakistan on 7-3-1949, and were incorporated in the first Constitution of the Islamic Republic of Pakistan in 1956 and repeated again in the Constitution of 1962. Its basic postulates are that sovereignty belongs to Almighty, which is delegated to the people of Pakistan who have to exercise the State powers and authority through their chosen representatives on the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, wherein the fundamental human rights are to be respected and the independence of the judiciary is to be fully secured."
455. ' His Lordships further said:- "The Objectives Resolution is not just a conventional preface. It embodies the spirit and the fundamental norms of the constitutional concept of Pakistan."
456. ' Of course, the Courts cannot nullify a law on the ground that it is opposed to a general latent spirit supposed to pervade or underline the Constitution, but where the terms or implications, as in the Constitution of Pakistan, are clear, the instrument has to be adhered to. Mr. Justice in Calder v. Bull (2), referring to the objects of the American Constitution observed:- "I cannot subscribe to the omnipotence of a State Legislature, or that it should be absolute and without control; although the authority should not be expressly restrained by the Court, or fundamental law of the State' 'There are certain vital principles in our free republican Governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to
(1) PLD 1957 SC 219 (2) Dall 386 take away that security for personal liberiy or private property, for the protection whereof the Government was established."
457. ' Willoughby in Constitution of the United States at page 71 of the Second Edition (1929) has said:- "The resort to the general nature and purpose of the Constitution in order to determine doubts not otherwise resolvable is a legitimate practice, sustainable by general principles governing the construction of written instruments, but the resort to the 'spirit' of the Constitution, in order either to sustain an exercise of governmental power or to impose a limitation upon it which is not provided for by the instrument itself, is not a valid practice .
458. ' The Supreme Court has forcefully expressed its opinion that the Objectives Resolution is the corner stone of the Constitution of Pakistan and it has to be treated as such.
27. It is, therefore, clear that a National Assembly engaged in framing a Constitution in Pakistan has to follow the above-quoted directions contained in the Objectives Resolution. I, however, do not find that the National Assembly by conferring validity on the laws framed during the Martial Law Regime by the usurper has offended against these directions. As I have said earlier, the object was to fill up the legal vacuum and give protection to various functionaries. I, therefore, find that the powers of validation of laws cannot be denied to the National Assembly and Article 281 cannot be held to be unconstitutional on the basis of the general nature of the arguments advanced before us. I agree that in a constitution there may be dominant provisions and servant provisions and when there is clash between the two, the latter will yield to the former. The rules of interpretation of constitution are the same as apply to the statute law. This was so held in reference No, I by the President of Pakistan (PLD 1957 SC 219). The constitution has to be read as an organic whole and where a general rule is followed by some exception the exception will have precedence. Similarly, if on an analysis of the various provisions it is found that a particular provision is irreconcilable with the organic whole it has to be declared as such. In Asma .Jilani's case Mr. Justice Yaqub Ali Khan referring to the proposed validation of the Martial Law Regulations observed that Martial Law Regulation 78 had been repealed but if it was continued it would have been void because of its repugnancy to Fundamental Rights. In this connection reference may also be made to a case from Indian jurisdiction L. C. Golak Nath and others v. State of Punjab and others (1), wherein it was held that the Indian Parliament had no power to pass constitutional amendments to take away or abridge the Fundamental Rights.
28. The question which now confronts us is whether Article 281 places a complete bar on our jurisdiction to examine the legality of the acts performed under the Martial Law Regulations, etc. The learned Attorney-General and the learned Advocate-General vehemently argued that there was a complete absence of jurisdiction of the High Court. In this connection emphasis was again and again placed on the sovereignty of the National Assembly and the subjugation of the superior Courts to the laws made by them. This emphasis on the sovereignty of the
(1) AIR 1967 SC 1643 Legislature is perhaps a result of the confusion of thought over the difference in the powers of the British Parliament and a Legislature functioning under a Federal Constitution. Even in United Kingdom, where the Parliament achieved its unique legislative sovereignty, after a hard and protracted struggle against the Royal Prerogative, the Judge, who during this struggle put their weight against the prerogative, retain their right to interpret the law. The conception of the sovereignty possessed by the British Parliament, however, does not fit in with the federal system of Government where sovereignty is distributed among the three organs of the State i,e, the Executive, the Legislatute and the Judiciary. John Adams said that "it is by balancing one of these three powers against the other two that the efforts in human nature towards tyranny can alone be checked and restrained and any degree of freedom preserved." Again Webster stated the same doctrine in the following words :- "The separation of the departments of Government so far as practicable, and the preservation of clear lines between them is the fundamental idea in the creation of all our constitution, and doubtless the continuance of regulated liberty depends on maintaining these boundaries."
459. ' The Constitution is the supreme National Laws but its supremacy is upheld by an independent judiciary by performing the difficult and onerous task of interpreting it. The following extract from Federalist 78 further bear out my point of view :- "The complete independence of the Courts of justice is peculiar essential in a limited constitution.
460. By a limited constitution I understand one which contains certain Specified exceptions to the legislative authority; such for instance, as that it shall pass no bills of attainder no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of the Courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void Without this, all the reservations of particular rights or privileges would amount to nothing.
461. ' It is far more rational to suppose that the Courts were designated to be an intermediate body between the people and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the Courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law.
462. It must, therefore, belong, to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which was the superior obligation and validity ought, of course, to be preferred; in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
463. ' In the case of Fazalul Qadir Chaudhry (1), the Presidential Order No, 34 of 1962 which had been issued in exercise of the powers of the President under Article 224(3) of the Constitution of 1962, declaring that even the members of the Legislature can become the Ministers of the Cabinet, was struck down by the Supreme Court. Their Lordships
(1) PLD 1963 SC 486 of the Supreme Court forcefully asserted their right to interpret the Constitution and observed that to decide on the question of constitutional validity in relation to an Act of statutory authority, how high-so-ever, is a duty devolving upon the superior Courts by virtue of their office. The following observation from page 491 of the report will be of some advantage "The power of judicial review, therefore, must exist in Courts of this country in order that they may be enabled to interpret the Constitution in all its multifarious bearings on the life of the citizens in this country. The provisions in the Constitution which bar certain questions from being raised in the Courts, are in the nature of a qualified embargo and it is not possible to spell out an absolute prohibition against judicial scrutiny of legislation, where it comes into conflict with the supreme law of the Constitution. The Constitution ought to be interpreted as an organic whole, giving due effect to its various parts and trying to harmonise them, so as to make it an effective and efficacious instrument for the governance of the country."
464. ' It is, therefore, our duty to find out the true import of the law whether it is constitutional or sub- constitutional and give effect to it. As Lord Devlin put it : "The law is what the judges say it is. If the House of Lords were to give an Act of Parliament a meaning which no one else thought it could reasonably bear, it is their construction of the words used in preference to the words themselves that would become the law."
465. (See Dias on Jurisprudence Third Edition Page 127).
29. We are familiar with the background of the creation of the present National Assembly. It was intended to bring order and democracy out of the chaos that had existed in the country after the proclamation of Martial Law on 25th of March, 1969. 1 have said above that th object of the validation of the proclamation and other legal instruments issued by the Martial Law Authorities was to fill up legal vacuum, but can it be said that the object of the National Assembly was to cove all sorts of atrocious and malicious acts. There is significant difference in the language of sub- Articles (1) and (2) of Article 281 of the Constitution. While in sub-Article (1) validity has been conferred on Martial Law Proclamation and other legal instruments mentioned therein notwith standing "any judgment of any Court" and they cannot be called into question in any Court, the language of sub-Article (2) is not as emphatical " Exclusive as of clause (I). Whereas it declares that all orders made, or proceedings taken and acts done under these laws or purported to have been made, taken or done, shall always be deemed to have been validly made, taken or done, there is no ouster of the jurisdiction of Courts. The National Assembly if they were so inclined, could have framed this Article by captioning it with the phrase "notwithstanding any judgment of any Court....."The inference, therefore, is that while it was intended to validate the tainted legal order initiated during Martial Law, there was no intention to the discriminately save or cover all acts performed under those laws. It would be far from the minds of the members of the National Assembly, who had been elected on the basis of adult franchise, with a mandate to usher in democracy by removing Martial Law, to do so. There is a clear indication how the mind of the National Assembly was working. In the phraseology of clause (b) of Article 295 which deals with the effect of repeal of laws, the phrase "duly done or suffered under the law" clearly indicates that the intention of the National Assembly was not to cover proceedings which were coram non judice or were vitiated by mala fide or malice. The effect of the use of the phrase "duly done" in clause (b) of Article 250 of the Constitution of 1962 was examined by Cornelius, J. In the case of Tanbir Ahmad Siddiky v. The Province of East Pakistan (1) at page 212 of the report. In this case the transaction regarding the acquisition of Waqf Property had been completed before the promulgation of Fundamental Rights on 19th of January, 1964. The Court repelled the argument that it should review its previous decisions expressed in the cases of Dosso (2) and Mehdi All Khan (3), when Fundamental Rights had been suspended but all the same Cornelius, J. Observed as under :- "In my opinion, Article 250 of the present Constitution effectively excludes the possibility of relief in respect of anything duly done by any authority or suffered by a citizen in consequence, during the Martial Law period."
466. I, therefore, find that notwithstanding the use of the word "purported" in clause (2) we have still the jurisdiction to examine the legality of the acts done by the Martial Law Authorities under the garb of Martial Law Regulations, etc. In Zatarul hsan's case (4), where the plea of complete bar of jurisdiction was accepted by the Supreme Court it was observed :- "Of course, where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
467. ' In Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (5), the present Chief Justice of Pakistan brought about a distinction in the expressions "without lawful authority" and "in an unlawful manner" and observed that the expression "in an unlawful manner" covered all matters which fell within the scope of judicial review apart from the questions of vires which were covered by the expression "without lawful authority". It appears from the judgment that his Lordship was agreeable to the view that Article 2 of the Constitution of 1962 was as comprehensive as the American "due process" clause, and observed as under "It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in unlawful manner."
468. ' Further dealing with the argument that the question of mala fide cannot be
(1) PLD 1968 SC 185 (2) PLD 1958 SC 533 PLD 1959 SC 387 (4) PLD 1960 SC 113
(5) PLD 1969 SC 14 gone into unless the law says that the authority must act reasonably honestly, his Lordship observed- "If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope fo judicial review then even questions of bona fide or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law.
30. It is generally accepted that the Courts have a right to examine the acts of the Army after the Martial Law or state of war is lifted. The Chief Justice of the Supreme Court in Asma Jilani's case quoted with approval the passage from Halsbury's Laws of England, Volume 7, Edition III, page 260. I reproduce the relevant portion below :- "The powers, such as they are, of the military authorities ceases and those of the civil Courts are resumed ipso facto with the termination of the state of war ; and, in the absence of an Act of Indemnity the civil Courts may inquire into the Legality of anything done during the state of war ; even if there is an Act of Indemnity couched in the usual terms, malicious acts will not be protected."
469. ' We find in Mian Iftikharud Din's case (1) that the Court was inclined to examine the question of mala fide, but did not do so because there was no factual foundation for that.
30. The learned Attorney-General cited the case of Muhammad Khan v. The State (2) in order to show that where a Martial Law Regulation had been received in the Constitution as a Central Law and there was a provision of bar of jurisdiction, the Supreme Court refused to go into the question of mala file. In Nawab Khair Muhammad Khan v. The State (3) the Supreme Court did interfere and observed that it could interfere in a case relating to Martial Law Regulation 64, which had been recognized by the Constitution as a Central Law, on the ground that the actions performed by the authorities concerned were not within the ambit of the said Martial Law Regulation. In the concluding portion of the judgment at page 611, their Lordships created a distinction between Martial Law Regulations which had existed before 8th of June, 1962, the date on which the Constitution of 1962 came into force and wherein the words "purported to be made" were used of paragraph 27 of the Regulation as it exised after the Constitution. The learned Attorney-General on this basis submitted that where the word "purported" is used, the jurisdiction of the Court is completely barred, including the mala fide acts. These cases, however, relate to the statutes where the Supreme Court found that there was a complete bar of jurisdiction. As indicated above, my finding is that there is no complete bar of jurisdiction, in so far as clause (2) of Article 281 of the Constitution in concerned, and the Legislature has very wisely left it to the Courts to decide as to whether or not an interference in any act impugned before them is called for. The phrase "in exercise or purported exercise of powers" used in clause (2) of Article 281 is very significant, such exercise or purported exercise of power has to have some semblance of legal authority for assumption of jurisdiction that has to be without malice in law or in fact. Wher the proceedings are coram non judice and where it is shown that the proceedings were streaked with mala fides, the action can be struck down.
(1) PLD 1961 SC 585 (2) PLD 1965 SC 623 (3) PLD 1966 SC 604
32. Myself and my three other brothers on the Bench had not the dvantage of seeing the judgment of his Lordship A. R. Sheikh, J. As his ordship told us that due to a physical disability on account of an injury on his hand he had not been able to finalise it. He had, however, indicated to us that he agreed with us in our interpretation of sub-Article (2) of Article 281 that under certain circumstances this Court had the jurisdiction to examine the acts performed or sentences awarded by persons functioning under the Martial Law Regulations etc.
32. Now, in the light of the above observations we have to see whether or not we can interfere in the cases mentioned above.
33. So far as Writ Petitions Nos. 403 and 404 of 1972 are concerned, the facts are common. The detenus in these cases were produced before Major Khalid Mahmood who was constituted as Summary Military Court No,
8. The detenus were handed over the charge-sheet and they filed written statements objecting to the jurisdiction of the Court. Major Khalid Mahmood admitted that on that day he had not taken the oath and when the detenus were presented before him with their written statements, he directed them to present the same to Major Muhammad Akram. As stated above, he fixed the "Digest Case" for 11th and then for 14th of April. The "Punjab Punch Case" was fixed for 13th and the "Zindgi Case" for 15th of April, 1972. He said that in deference to the orders of this Court passed on 10th of April, he did not announce any orders on 11th in the "Zindgi Case".
34. In my view the whole proceedings before Major Khalid Mahmood were vitiated for non- compliance of statutory and mandatory provisions of law with the result that the proceedings have been reduced to coram non judice. The first is the question of the convention of the Summary Military Court itself. The order of the convention of the Court on the original files of one of these cases reads as under :- "I hereby direct that accused Dr. Ijaz Hasan Qureshi, son of Abdul Ghaffar be tried Summary Military Court No, 8 for district Lahore."
470. ' There is a similar direction on each file about each accused. We had asked the learned Advocate- General to send to us the relevant papers regarding the convention of the Summary Military Court.
471. It appears from the documents sent by him that Lt.-General Atiqur Rehman, Martial Law Administrator Zone 'A' issued Martial Law Order No, 2 on 26th of March, 1969, authorising the Sub- Administrators of Sectors 1 to 7 to empower any Magistrate First Class or any military, naval or air force officer, provided he had been specially selected for that particular duty, to hold Summary Military Court in his area of administration. This order was issued on the basis of Chief Martial Law Administrator's Order No, 4 giving authority to the Administrators of Martial Law Zones 'A' and '13' to delegate their authority to any Sub-Administrator of Martial Law within their respective Zones to convene Summary Military Courts. There is no order authorising the Sub-Martial Law Administrator to further delegate his authority. One of the documents sent by the learned Advocate-General is a copy of an order, dated 8th of April, 1972, sent to Major Khalid Mahmood. It reads as follows :- "You are hereby appointed to form a Summary Military Court to sit for the trial of all persons who may be duly brought before NOLI.
472. ' The Court will assembly at District Lahore, with effect from 10th April, 1972.
473. ' The Court will sit daily until further orders for trial of all cases arising in the following area or such cases as my be brought before it :- "Civil District Lahore"
474. (Sd.) Col. for Sub-Martial Law Administrator (A. Q. Anjum)
475. People's House Lahore 8th April, 1972."
476. ' Whether the order of convention was passed on 8th or 10th of April, as appears from the original record, it was not signed by the Sub-Martial Law Administrator himself. The officers who signed these orders are different. It does not appear that one knew about the order passed by other. Nor does it appear that the Sub-Martial Law Administrator whose identity remains undisclosed had any communication with them. He could not have delegated his powers to any other officer. The convention of a Summary Military Court is the very foundation of its jurisdiction. The Sub-Martial Law Administrator having not himself applied his mind to the convention of the Court, in. My view, the very foundation for the jurisdiction of this Court was wanting.
36. Inspector Ghulam Rabbani stated before us that he produced the detenus before the Summary Military Court on 10th and the Court after delivery of charge to them passed orders fixing dates of hearing.
37. When the accused persons appeared before the Summary Military Court for the purposes of receiving their charge-sheet, the Court performed a judicial act in delivering the charge to the accused. The Major candidly admitted that he did not take any oath on that day. He also admitted that the written statements questioning his jurisdiction were presented before him but be refused to receive them. A Summary Military Court constituted under the Martial Law had to follow the procedure of the Summary Court Martial under the Army Act of 1952. Under Rule 98 of the Pakistan Army Act Rules of 1954, a special plea to the general jurisdiction of the Court or a plea in bar of trial, in a summary trial, is to be considered in the light of the procedure laid down for general and district Court-martial. Section 104 of the Army Act deals with the challenge of the jurisdiction of the members of a general, district or field general Court Martial. Subsection (2) enjoins that when an objection is raised to the competency of an officer sitting at a trial, the objection and the reply of the officer objected to shall be heard and recorded by the remaining officers of the Court who shall decide on the objection in the absence of the challenged officer. There provisions had been made in order to ensure the minimum procedure for ensuring the competency importiality of the officers presiding over a trial. It may be said that since there were no officers present at the trial, the procedure laid down in section 104 could not be strictly followed. This, however, is not an answer to the grievance made on behalf of the detenus. The law under which they were tried gave them a right to raise a question of jurisdiction and there is a procedure laid down for its resolution. It was the duty of the Presiding Officer, at least, to record their objections and send it on to the Sub- Martial Law Administrator for proper orders. When a penal law gives a certain right to an accused person, he has to be given that right and if that right is denied, proceedings are irremediably vitiated. It may be mentioned here that even when the evidence was recorded and the statements objecting to the jurisdiction of the Court were produced before the Presiding Officer, Mr. Mujib-ur- Rehman reiterated his stand that his statement had bearing on the jurisdiction and existence of the Court.
477. ' Perhaps the Major was in doubt as to his jurisdiction and it is why he directed the accused to present their written statements regarding bar of jurisdiction, before Major Muhammad Akram who had signed for Sub-Martial Law Administrator on the order of the convention of the Court. But he failed to perform his own duty in this respect. No action was taken and no order was pronounced on the question of jurisdiction. We find that after the promulgation of the sentences, these statements were sent to Headquarters Martial Law Administrator Zone 'C' and this also perhaps indicates that the mind of the Major was not satisfied as to his own jurisdiction.
38. With regard to the unusual procedure adopted in these cases, I have said something in my detailed reasons for the order passed on 17th Of April, 1972. The Major told us that since the accused had questioned his jurisdiction and were not cooperating with the Court he thought of finishing these cases on one day. The question of jurisdiction had been raised before the Major on 10th. It was very much before him also on the 11th. He did pass any order on the file of the "Digest Case" showing why he adjourned the case to 14th. He said that he was aware of this Court's hope and desire that no final order shall be passed in the case and it was in deference to that order that he did not pronounce any final order on 11th. It is not clear as to what happened on 13th which compelled the Major to summon the detenus in the "Zindgi Case" and "Punjab Punch Case" by a telephonic message from the police custody. Under sub-rule (2) of rule 81 it is the duty of the convening officer to ascertain whether a friend was needed by the accused or not. The detenus in these two cases were brought straight from jail without any communication with any of their relatives or lawyers or friends. The Major told us that he had asked them whether they would like to have a friend but they refused. It is too difficult to swallow this statement. It may be pointed out that in para. No, 6 of the additional grounds filed in Writ Petition No, 403, the correctness whereof has been sworn to by Ziaur Rehman petitioner, it is definitely asserted that the detenus in the "Zindgi Case" had met Ziaur Rehman on the 11th and that arrangements for lawyers to appear for them had been made. The Major was bound under the law to make a written note of this fact in the file. It was suggested at the bar that it was in order to present this Court with an accomplished fact that these cases were accelerated. Another suggestion made was that the cases were rushed through in view of the possible prospect of the lifting of Martial Law by the National Assembly. The order of the High Court in deference to which the Major claims to have stayed his hands on 11th did not further weigh with him. He did not care to find out whether this Court had extended the order on 12th or not. Whatever may be the campelling but undisclosed reason for which the Major thought it fit to dispose of these cases on 13th, it is not difficult to come to the conclusion that it was not a simple desire to dispose them of speedily. Even where an accused raises a question of bar of jurisdiction, or is not co-operating with the Court, the onus is always on the prosecution to prove his guilt and it is incumbent upon the Court to see that the accused is questioned with regard to all matters which facilitate his defence. The charge-sheet shows that only the relevant pages of the impugned Articles and their captions were given. The portions which spell out the guilt of the accused were never put to them. It is, of course, mentioned in the record of evidence that the Articles mentioned in the charge were read out in Court but even in the record the specification of particular portions has not been made. So far as this reading out in the "Zindgi Case" is concerned, we find the following passage in the additional of the petition grounds to the correctness of which the petitioner Ziaur Rehman has sworn :- "An attempt was made by the Inspector to read certain passage from the Urdu Digest, but he was unable to read properly, whereupon the Major who was presiding over the Summary Military Court took over, but he also was unable to read properly from the issues of the Urdu Digest. The detenus did not have with them copies of the Urdu Digest so as to be able to know which precise passages were objected to. These two detenus were asked what they had to say and they delivered a written statement which has already been placed on the record. The case was then adjourned to the 14th for further proceedings."
478. ' The Government have not filed any rejoinder to these additional grounds and this assertion in the absence of any denial has to be accepted at its face value. Here was, therefore, no proper specification of the impugned writings. Nor is there any evidence that the Major applied his own mind to these writings. This is nothing short of travesty of justice. It is the right of every accused to know what is the precise accusation against him and what is the factual basis for the imputation. It is not enough to accused a man of anti-State activities with reference to his writings without specifying the portions which impugned upon the law.
479. ' It may also be observed that the evidence taken in the case does not bear any date although I cannot positively say as to for what particular purpose the significant omission appeared in all these three cases.
39. Then the method of imposition of sentences is wholly illegal. Under rule 107 of the Pakistan Army Act Rules, before a Summary Military Court imposes a sentence, it has to take into consideration the character and previous conviction etc. Of the accused, and if necessary he is to take evidence in that regard. The Major said that he thought this particular rule related to the Army Personnel, but he took it for granted that the antecedents of the detenus were good and yet he gave them the maximum term of imprisonment which he could award as a President of the Summary Military Court. When free citizens of the country are subjected to coercive Military law, the superior Courts would expect that the letter of the law is strictly complied with. Whatever goes in favour of the accused persons has to be done before the ends of justice can be said to have been adequately met.
40. Then again there is another factor which shows anxiety to proceed hastily with the cases and to convict the detenus without paying due regard to the record. He even ignored the glaring fact that the charge under Martial Law Regulation 16 (a) was in the alternative and before giving a finding of guilty he had to clearly state whether the accused were guilty on the first two charges or on the alternative charge. He held them guilty on all the charges. He explained to us that this was a technical mistake, but such technical mistakes operate to vitiate the whole proceedings, because the liberty of the citizens cannot be trifled within such a manner. The penal law has to be very strictly interpreted especially when a citizen, who has a right to open-Court trial under the law, is subjected to the rigours of a law which applies to the Armed Forces who work under a strict system of discipline.
41. I, therefore, find that the detention of Messrs Altaf Hassan Qureshi, Ijaz Hassan Qureshi, Mujib-ur- Rehman Shami, Muzaffar Qadir and Hassan Naqi was illegal and their convictions and sentences were of no legal effect and unauthorised.
42. This order was being dictated when these detenus were released by the Government. Since constitutional arguments of great importance had been addressed to us, I feel that the parties are entitled to a verdict on all the aspects of the case notwithstanding the release of these detenus by a governmental action.
43. Now I deal with Writ Petition No, 223 filed by Mukhtar Rana, which covers his prosecution of under section 302 and Martial Law Regulation 16 (a). A Bench of three Judges had issued an order in this case staying the proceedings before the Special Military Court. The Supreme Court on the undertaking given by the Attorney-General modified and restricted that order to the extent that the Military Court shall not pass any final orders. We were told by the learned Attorney-General that the Special Military Court had proposed a sentence and since it could not promulgate the sentence without confirmation by the prescribed authority, it is still pending confirmation, It was urged on behalf of Mukhtar Rana that the Special Military Court had violated the order of the Supreme Court in proposing the sentence because the Supreme Court had said that the Special Military Court shall not pass any final order. The learned Attorney-General on the other hand argued that the order will attain finality only when it is confirmed and, therefore, there was no violation of the Supreme Court's direction which was passed on the undertaking given by the learned Attorney- General.
44. I am of the view that the order of the Special Military Court . Proposing a sentence for Mukhtar Rana is final in so far as the Military Court is concerned because the confirming authority may revise or refuse to confirm the sentence proposed to be passed on Mukhtar Rana. The direction issued in the order of the Supreme Court was to the Military Court and the Military Court could not have passed any final order in this respect. True, that by sub-Article (1) of Article 281 of the Interim Constitution the Martial Law Regulations, etc., have been validated notwithstanding the judgment of any Court. But, any direction or injunction issued by any superior Court to any military authority is not covered by clause (1). The order of the Military Court proposing a sentence for Mukhtar Rana is, therefore, vitiated for non-observance of the clear direction of the Supreme Court to which the Government itself was committed.
480. ' Mr. Zafar had at the initial stages of his arguments asserted that para. 4 of Presidential Order No, 14 was unconstititional because it purported to invest the President or the Governor, who are the Executive heads of the Administration, with judicial powers. He, however, did not carry this argument further. Since no full-dress arguments were addressed by the parties on this aspect of the case, I do not propose to express any opinion on this. The violation of the order of the Supreme Court is enough to hold that the case was pending when Presidential Order No, 14 was issued. The case shall, therefore, be covered by para. 3 of the President's Order No, 14 of 1972 and shall be tried afresh by an ordinary Court of criminal jurisdiction.
45. We do not know what has happened to the case of Muhammad Riaz Shahid who is petitioner in Writ Petition No, 335. If the facts in this case are also the same as in the above case of Mukhtar Rana, then his case shall also stand transferred to an ordinary Court of criminal jurisdiction.
46. So far as Writ Petition No, 625 is concerned, it was filed in the High Court after the Constitution had come into force in the country. I have held above that the National Assembly had the power of ex post facto validation of the Martial Law Regulations and the actions taken thereunder. We have not been addressed on the merits of the case except that we were told that the action was mala fide and the intention was to deprive Mr. Mukhtar Rana to join the National Assembly. There is no factual foundation for such submission. The conviction of Mukhtar Rana in this case is a transaction past and closed in every sense of the word. The case is covered by clause (b) of Article 295 of Interim Constitution. The Fundamental Rights came into force on 21st of April, 1972, and were suspended on the same day by the President's Proclamation. I have indicated above the extent to which the High Court can go in order to examine the action taken and sentences passed under the Martial Law Regulations. It has not been shown that this case falls within .Those limitations. I have, therefore, no alternative but to dismiss this writ petition. There will be no order as to costs.
481. ' MUHAMMAD AFZAL ZULLAH, J.-The main questions requiring determination in these constitutional petitions are :
(i) Whether the National Assembly, as at present constituted, was competent to frame Interim Constitution of Islamic Republic of Pakistan ?
(ii) Whether the Objectives Resolution places supra-constitutional limitations on the powers of the National Assembly when framing a constitution or, for that matter, enacting ordinary laws?
(iii) Whether the National Assembly can abdicate the State power in favour of an indi idual ; in other words, whether one man's rule is permissible in Pakistan ?
(iv) If abdication is not permissible, whether any Assembly can, with retrospective effect, legitimise one man's rule ?
(v) What is the interpretation and true import and scope of Article 281 of the Interim Constitution ?
(vi) Whether, qua the determination of the above questions, there are any limitations on the judicial power and/or jurisdiction of the susperior Courts in Pakistan ?
(vii) Whether the detenus in these petitions are entitled to the relief of unconditional release ? And (viii)Whether the detenus are entitled to any relief on a purely technical interpretation of Article 281 ?
482. ' My answers to questions Nos. (i), (ii), (vii) and (viii) are in the affirmative while to Nos. (iii), (iv) and
(vi) are in the negative. Short answer to question now is that Article 281 of the Interim Constitution has limited scope and provides only indemnity.
483. ' I now proceed to give the reasons.
484. Question No, 1: It is no doubt true that the general elections held in Pakistan in 1970 were arranged under the Legal Framework Order, 1970 (hereinafter referred to as the L. F.
485. 0.) framed by General Yaha Khan who has been held by the Supreme Court in the case of Asma Mani as also by this Court in the Jouranlists' case (C. M. No, 1 in W. P. No, 403 of 1972, decided on 17- 4-1972) as a usurper. But the fact remains that the elections were accepted by all concerned 'as free and fair. It is also a fact that one of the mandates for the members elected to the National Assembly was to frame a new Constitution for Pakistan. On the basis of the State necessity as propounded by the Supreme Court in Asma Jilani's case, there is no dispute about the proposition that the elections arranged under L. F.
0. Can be upheld as valid and legally effective. However, unanimity is lacking amongst the learned counsel on the question as to whether the mandate, which the members of the National Assembly carried to frame a new Constitution, can also be upheld on the basis of necessity. Mr. M. Anwar, learned counsel for the petitioner in W. P. No, 403 of 1972, strenuously argued that the National Assembly is not competent to frame a new Constitution. His grounds are : firstly, that on the basis of necessity only elections can be condoned and the National Assembly has to act in the Framework of 1962 Constitution because, according to him, in Asma Jilani's case the Supreme Court held that the said Constitution was still operative ; secondly, that the members from East Pakistan have been and are for the time being unable to participate in the deliberations of the National Assembly therefore, the body, as at present constituted not being truly representative of the entire Nation and all the provinces of Pakistan, is not competent to frame .a new Constitution ; thirdly, that if on account of physical and temporary separation due to enemy action and usurpation in East Pakistan all the members cannot sit in one assembly to conduct business, the members present in West Pakistan can only, acting as National Assembly under the 1962 Constitution, amend the same and that too subject to requirements of that Constitution, but cannot replace it. Mr. S. M. Zafar, learned counsel for the petitioner in Writ Petitions Nos. 625 and 335 of 1972. However, did not adopt the above argument. He, in a detailed analysis of the L. F.
486. 0., tried to show that the present National Assembly being a body constituted under the L. F.
0. Cannot act outside its scope. The learned Attorney-General and the learned Advocate-General appearing for the State, however, argued that the National Assembly, as at present constituted, is a sovereign body and is competent to enact a new Constitution, in fact any Constitution, and that there are no constitutional or supra-constitutional limitations on its powers.
487. ' The limitations spelled out by the learned counsel for the petitioners can be divided into three categories ; arising out of 1962 Constitution geographical necessity ; and L. F.
488. 0.
489. ' Judicial notice can be taken of the fact that the nation, as a whole, agitated against the 1962 Constitution in 1968-1969. Field Marshal Muhammad Ayub Khan, the then President. Who had claimed to have given that Constitution to the country failed in the Round Table Conference, in his efforts to satisfy the political leaders and as a result of all these circumstances he decided to give up the office of President he held under that Constitution. It is clear from these facts and is also generally accepted that the system given to the country by Muhammad Ayub Khan did not succeed and the people rejected the same mainly because it was dictatorial and derived its strength from philosophy of despotism. It did not conform to the accepted basis of Constitution, namely, the Objectives Resolution passed by the iirst Constituent Assembly of Pakistan in 1949 (hereinafter referred to as the Objectives Resolution). The Constitution of 1962, which was the legal manifestation of this system was neither in accord with the Objectives Resolution nor was it framed by the chosen representative of the people as is clear from the following expression in the Preamble thereof :- "Now, therefore, I, Field-Marshal Muhammad Ayub Khan, .. . . Do hereby enact this Constitution."
490. ' It is thus clear that on its own force the Constitution of 1962 could not have stood the tests of enactment by the chosen representatives of people ; being based on the ideology of Pakistan ; and in accord with the basic requirements contained in the Objectives Resolution. I am, therefore, unable on general principles, to accept the argument that in spite of enactment of the interim Constitution, 1962 Constitution is still in operation and chat N the National Assembly was bound by it. In reaching this conclusion, I N have not been unmindful of the observations made by Hamoodur Rahman, C. J., in Asma Jiluni s case nor my own remarks in the majority order, dated 17-4-172 in the Journalists' case (1).
491. Supreme Court : "The latter (Muhammad Ayub Khan) subsequently without creating any new organic law, quietly assumed the office of President also and contained to function as such until 1960 when he managed to secure a so-called mandate by some sort of a referendum to frame a Constitution.
492. This Constitution was framed by him and came into operation from the 7th of June, 1962. The country by and large accepted this Constitution and even the Judges took oath under the fresh Constitution, Two Presidential elections were held under this 'Constitution, the erstwhile Commander-in-Chief was elected on both occasions. National and Provincial Assemblies were set up and the country continued to be governed in accordance with its terms until the 25th of March, 1969."
493. High Court : "The promulgation of Martial Law and abrogation of Constitution by the Commander-in-Chief (in 1969) in the name of Armed Forces and assumption of political power under any garb whatever was against the very basis on which this State was founded. The Courts have no jurisdiction to accept such usurpation as lawful and valid. In this context it may be mentioned that in these proceedings it is not necessary, even though indirectly relevant, to go into the question of dissolution of first Constituent Assembly. The abrogation of the 1956 Constitution and the imposition of the 1958 Martial Law. When they are re-examined, perhaps the conclusions would not be different. It is, however, to be admitted that the 1962 Constitution had established organs of State which were in operation when the present Martial Law was imposed.
494. ' The President elected under the 1962 Constitution, who was in office (1) PLD 1972 Lah. 382 in 1969, had no power to hand over the country, as he did, to the Commander-in-Chief of the Armed Forces".
495. (Underlining is by me)
496. ' It needs no lengthy reasoning to say that these observations and remarks do not, in any way, detract from my above finding on the basis of general principles, about the validity, revival or continuance of the 1962 Constitution. The recognition given to the 1962 Constitution in the opinions quoted above is obviously de facto and does not dilute the effect of reasoning in support of my finding as to its origin and basic validity.
497. ' Support was sought for the argument of continuance of the 1962 Constitution from a specific observation made by Salahuddin Ahmed J., in Asma Jilani's case wherein it was neld that the Proclamation of 25th March, 1969 and Provisional Constitution Order, 1969, had ceased to exist due to the disappearance of Yahya Khan from the scene and the 1962 Constitution had "come back with full force and is operative". The argument by the learned counsel ignores the context in which the observation was made; namely, that the separation of powers in the 1962 Constitution ensured to the judiciary the "entire judicial power" and because the Supreme Court, as it was then functioning, was the creation of 1962 Constitution, therefore, after the disappearance of Yahya Khan's regime and system, the 1962 Constitution with the above concept of judicial power had revived. Thus the revival indicated is in the context of judicial power. It has also to be noticed that the judgment in Asma Jilani's case was announced on 20th April, 1972.. The Interim Constitution was enacted by the National Assembly on 17th April, but it had come into force on the commencing day which was 21st April, 1972 The Courts in Pakistan were aware that the then available chosen representatives were framing an interim Constitution for Pakistan. That is why his Lordship qualified the observation of revival of 1962 Constitution with the rider "until it is validly replaced by the elected representatives of the people". Thus, there was nothing sacrosanct in the 1962 Constitution so as to debar the elected representatives of the people to replace it by a new Constitution. I am in no doubt that subject to what I have to say on other contentions raised in this behalf, the elected representatives have, by enacting the interim Constitution, repl iced Cie. 1962 Constitution on 21st April, 1962. This disposes of the revival argument.
498. ' The other argument is sought to be based on a ratio decidendi and numerous observations by the Supreme Court in Asma Jilani's case. It is true that the entire regime of Yahya Khan including the assumption of political power, promulgation of Martial Law, abrogation of 1962 Constitution, enactment of so-called constitutional and other Orders and Martial Law Regulations, etc , and actions taken thereunder, were declared null and void. Apart from the other effects of this declaration, the one which has been relied upon in this context is so obvious that it cannot be ignored ; namely, that the 1962. Constitution was never lawfully abrogated and it continued in force till the judgment by the Supreme Court. The learned Chief Justice observed that apart from de fa- to recognition to the Constitution of 1962 the Courts gave full effect to it in a number of cases some of which have been noticed at page 162 of the report. It had also acquired de jure validity. But that finding does not connote that the 1962 Constitution could not be replaced by a better Constitution.
499. In this connection I have already referred to an observation by Salahuddin Ahmed, *[Here in italics)
500. J., wherefrom it can clearly be spelled out that the 1962 Constitution could be replaced. The learned Chief Justice, while taking note of the question of validity of the present regime (of elected representatives), made the following observations which are also relevant in this behalf :- "I am fully conscious of the fact that there were very important differences which may well have a bearing on this question. The circumstances may well have been totally dissimilar. Again since the preparation of this judgment further developments have taken place of which I am entitled to take notice. The National Assembly has met and ratified the assumption of power by the new President who is an elected representative of the people and the leader of the majority party in the National Assembly as now constituted. The Assembly has also, it is said, ratified an interim Constitution. Its terms are not known to the Court as yet but these developments may well have radically altered the situation."
501. Thus it becomes clear that even their Lordships of the Supreme Court were conscious that the 1962 Constitution was in the process of being replaced by another Constitution. It cannot at all be spelled out from the judgment in Asma Jilani's case that the 1962 Constitution could not be replaced by a new Constitution. I, therefore, hold that apart from the general principles, the argument based on a ratio decidendi in. Asma Jilani's case is of no avail to the petitioners in the argument that the 1962 Constitution could not be replaced by a new Constitution.
502. ' In relation to the next argument based on certain geopolitical realities of Pakistan, judicial notice can be taken of a very important fact that in East Pakistan a rebellion was physically supported and openly owned so by the Government of India. That Government is formed of a party the majority of which have even now ideological differences with Pakistan and in spite of independent existence of this country for a quarter of a century, have not reconciled to its independent existence. L. F. Rushbrook Williams in his book "The State of Pakistan" 1962 Edition, made the following comment in this behalf :- "This feeling that Pakistan need not have emerged at all is important politically, because it shaped the Indian attitude, and influenced Indian behaviour; towards Pakistan, not only in the early critical - days when the national outlooks on either side of the new frontier were in process of formation, but also in later years."
503. India, by use of military force, occupied the entire Province of East Pakistan in December, 1971 and has, by now, installed there a rebel Government of their choice and liking. Due to blockade and disruption of communications, it is physically impossible for the members from East Pakistan (other than those who are present in West Pakistan) to participate in the deliberations of the National Assembly. Moreover, in the present circumstances, it is not certain that their loyalty to Pakistan is not under undue strains, influences and duress; in consequence whereof, their representative capacity under the laws of Pakistan might come under question. Therefore, they cannot participate in the proceedings of the National Assembly of Pakistan. In these circumstances, there could be no better manifestation of State necessity if the National Assembly assembled and transacted its business as such without the participation of the majority of members from East Pakistan. In Asma Jilani's ccu e, the learned Chief Justice has clearly visualized this situation in the observation that "the National Assembly has met and ratified the assumption of power by the new President who is an elected representative of the people and the leader of the majority party in the National Assembly as now constituted." (Underlining* is mine) The High Court, in the majority order in the journalists' case, had also made a similar assumption. Thus, the National Assembly, as at present constituted, is competent to act as such and if there is no other bar, it can frame a new Constitution for Pakistan.
504. The hurdles pointed out in this connection are related to the above geopolitical realities and are thus surmountable on the basis of State necessity. It was also argued that by enacting a Constitution the National Assembly would, by implication, accord recognition to the usurpation in East Pakistan. A protest was made from the State side on such an assumption. The argument has no force because in the interim Constitution itself there are specific provisions indicating that East Pakistan is a part of Pakistan. So much so that in spite of th fact that Bengali is not the language of any geographical part of West Pakistan, it has been declared as one of the two national language of Pakistan. Seats were reserved in the National Assembly Hall tor all the members from East Pakistan and the Law Minister addressed them in this behalf on radio. The Executive in Pakistan also has not gone against the mandate of the Constitution and the people's representatives in this behalf. On the contrary, the President of Pakistan ha appointed an East Pakistan veteran politician, who is a member of the National Assembly, in the second highest office, namely, the Vice- Presidency, and two other known political leaders of East Pakistan, one of whom is also a member of the National Assembly, have been given important assignments including that of National affairs, in the Government of Pakistan; not as representing any geographical unit in West Pakistan but in recognition of their being representatives of the people of East Pakistan. No question arises of the third important organ in. Pakistan, namely, the Judiciary, ever having given recognition to usurpation in East Pakistan. Therefore, the argument of the learned counsel in this behalf, i,e,, if the interim Constitution is accepted as validly made, it will amount to de jure recognition of usurpation in East Pakistan, is unacceptable. There are many examples in the World history of similar situations. In recent past, physical separation in Korea, Vietnam and Germany as also of Farmusa was not treated as a bar to the enacting of relevant constitutions. Nor has such an act been interpreted an implied recognition of secession. Some references have been made to the question of recognition in Asma Jilani's case and it will be of advantage to quote their Lordships' observations in this behalf:-- "The recognition of a State under International Law has nothing to do with the internal sovereignty of the State, and this kind of recognition of a State must not be confused with the recognition of the Head of a State or Government of a State. An individual does not become the Head of a State through the recognition of other States but through the municipal law of his own State."
505. "These strong measures had, however, no effect on the events which *Mere in italics] were shaping fast in the Eastern Wing. It led to an armed surrection by Awami League and their supporters."
506. "East Pakistan has declared its self-independence and become a separate State under the name of Bangla Desh. Pakistan claims that East Pakistan is a part of Pakistan, but a large number of States have already recognized it as an independent State." "the Municipal Courts of Pakistan will not confer recognition on it or act upon the legal order set up by the rebel Government."
507. There is no denying the fact that accord of de jure recognition of usurpation in East Pakistan is, in our system of laws, as much a constitutional question as it is political one. But I am not called upon to say anything more on this subject as the decision in this case does not rest on it. Moreover, it is not necessary to express any final opinion in these proceedings as a political debate is already in progress. In my view, recognition being a mixed question of ideological and constitutional importance with political overtones, one way of its proper resolution can be by a special reference to the Supreme Court under Article 187 of the interim Constitution, provided the President considers it desirable.
508. ' As to the third contention of Mr. M. Anwar, that the National Assemoly, as at present constituted, can only amend the Constitution of 1962, suffice it to say that on the view I have formed on the question of validity, continuance and replacement of that Constitution, it is not necessary to examine this question in any detail. If the National Assembly, as at present constituted, was competent to replace the Constitution of 1962, it was within the exclusive power and field of the Assembly itself to decide whether it wanted to give a new Constitution by merely amending the 1962 Constitution or by replacing it. In so far as this particular question is concerned, even if the argument of Mr. M. Anwar, and if I may say so with respect to the learned counsel that it is more of a desire than legal argument, be accepted, the Courts cannot interfere with the decision of the National Assembly in this behalf. The chosen representatives of the people having decided to frame a new Constitution, it will have to be presumed that it is not the desire of the people of Pakistan to continue the Constitution given by one man in 19.2, by only amending it.
509. ' The last contention on this subject raised by Mr. S. M. Zafar and which is based on the L. F.
510. 0., does not require any lengthy examination. According to the judgment in Asma ilani's case, legally speaking, the L, F.
0. Has to be declared as void ab initio. The elections thereunder, however, are capable of being and have been condoned essentially on the basis of State necessity and probably also as one of the manifestations of body politic. Another such manifestation is the admitted legitimacy of the present regime because the body politic, as a result of general elections, has thrown up a leadership which, as I said in the earlier order in the case of journalists, has already re-captured political power. I said so because in my view such a leadership were within their right as chosen representatives of the people to demand Or? Transfer of power and if there was any hesitance on the part of the usurper, to re-capture it. And subject to the question of validity of the continuance of Martial Law, which has been settled by the earlier mentioned judgments of the superior Courts, the leader of the chosen representatives. After having assumed the office of President,' had the power and jurisdiction to summon the National Assembly and did not need the crutches of L. F.
511. 0.
512. ' I may, however, clarify that if any provisions of the 1962 Constitution or that of L. F. O. Have a valid lawful existence independent of these instruments, and if they are of such force as to bind the National Assembly, the Court will recognize such a limitation on the power of the National Assembly, not because it forms part of the 1962 Constitution or the L. F.
0. But because of its independent existence. One such limitation, in my view, is the Objectives Resolution passed by the first Constituent Assembly of Pakistan on 12th March, 1949. A part of it was enacted in the Preamble of the 1962 Constitution and some concepts thereof were included in the L. F.
0. That limitation, however, as will be presently discussed, is with regard to what the National Assembly is required to enact in a Constitution and is not in any way a bar to its framing a new Constitution.
513. ' The provisions of the L. F.
0. Pointed out by Mr. S. M. Zafar with regard to the Fundamental Rights are not such which could bind the National Assembly in so far as the Chapter of the interim Constitution relating to the Fundamental Rights is concerned. Those provisions of the L. F.
0. Cannot be imposed on the will of the National Assembly even on the basis of State necessity, particularly when the National Assembly itself has enacted the provisions relating to the Fundamental Rights in the manner it considered more suitable for the Nation with which decision the Courts would not interfere on the basis of the above contentions arising out of the 1962 Constitution and the L. F.
514. 0.
515. ' Mr. S. M. Zafar expressed the fear that if no condition or limitation, like its summoning by a lawful authority under a valid instrument, is placed on the members of National Assembly collecting, sitting together and deciding important questions of State including Constitution, it might lead to chaos as some members with adventurous spirit might like to style themselves as National Assembly and then do whatever they liked. The fear is unfounded. As will be discussed later, the superior Courts in Pakistan, which are the repository of the judicial power of the State, have ample jurisdiction to decide as to whether a particular group of the members of National Assembly would constitute the National Assembly. In such an eventuality, a question can be brought before the superior Courts through proper proceedings.
516. ' I have already discussed the question of summoning of the National Assembly by the President.
517. As to what is the effect of the President laying down certain limitations in the National Assembly (Short Session) Order, 1972 with regard to the procedures in the Assembly Session, some of them relate to the internal proceedings of the Assembly and this Court, as held in Farzand Ali v. Province of West Pakistan (1), would not interfere with them collaterally in these proceedings on the petitions for writs of habeas corpus. Ai observed by their Lordships, "this de facto
(1) PLD 1970 SC 98 doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights.". As to the necessity, there is hardly any doubt that the country badly needed an interim Constitution; rather there was a widespread demand that the Martial Law be lifted and the country be immediately given a Constitution. If under this necessity the members of the National Assembly agreed to the limitations placed by the President in the Short Session Order, it was purely their own outlook. The question of the effect of President having told the National Assembly, that if it faded to pass the interim Constitution as presented before it by the Executive the Martial Law shall not be lilted, undoubtedly was an extraordinary act in the history of Constitution-making by the real chosen representatives of the people. Many subsidiary questions arise including one, namely, if the public and the members of the Assembly wanted the lifting of the Martial Law, whether the interim Constitution represents the will of the people because the members of the National Assembly were not left with any other choice? On one question of fact involved in this subject, sufficient comment has been made in the order in the case of journalists which finds further confirmation from the statement of the President made at Quetta reported in 'Pakistan Times' dated 22-5-1972 that the Martial Law had been withdrawn earlier "on the demand of the people" notwithstanding the desire of the President to the contrary, because he "did not want to go against the wishes of the people".
518. Another facet of this question is that the majority of the members of the National Assembly, as at present constituted, belong to the political party which is headed by the President himself. The draft interim Constitution bill was prepared by and/or under the supervision of the Law Minister who himself belongs to the same party. It is not unlikely that the draft represented the will of the majority of members of the. National Assembly as they belong to the same party. It can be argued that they would have, in any case, supported the bill even without any condition like the one mentioned above. As to the Opposition, judicial notice can be taken of the fact that even they chose to abstain and did not cast negative vote. Without clear evidence to the contrary, it cannot be said that all or majority of members of the National Assembly including the members of the Opposition did not oppose the passage of interim Constitution only on account of the condition qua the lifting of the Martial Law. The above observations are on the basis of certain assumptions only. There is no other evidence to show that the members of the Assembly were in fact under duress so as to affect their judgment. In other words, it means that there is no legal proof to support a finding that it was passed under duress I, therefore, decline to hold that the interim Constitution was passed under duress. In case positive findings in relation to duress and/or bias in this behalf were possible, the law then would have had its course qua certain declarations. In a proper case and proceedings, superior Courts have jurisdiction in the matter. See Farzand All v.
519. Province of West Pakistan.
520. ' The result of the above discussion is that in my view the National Assembly, as at present constituted, was competent to frame an interim Constitution as also a new Constitution for Pakistan and further that nothing in the Constitution of 1962, the L. F. O., or the geopolitical conditions in Pakistan can be treated as bar to its competency in this behalf.
521. Question No, II ' On the one hand, it has been contended that the National Assembly, as at present constituted, has limited power and has to be controlled, amongst other limitations, by grund norm of Pakistan, Objectives Resolution, Constitution of 1962 and the L.F.O. On the other, the learned Attorney-General went on to the extent of claiming of this Assembly an unlimited power of enacting anything it liked in the form of a Constitution. He asserted that it can lay down that in future the State of Pakistan shall be, governed by an autocrat, say another Military Commander, and further that it could also lay down order of succession to such a ruler. The only limitation, according to him which would prevent the Assembly making such a provision, is political and not constitutional and if (God forbid) it did ordain so, the remedy of the people would be through a revolution and not through Courts.
522. ' To be fair to the Attorney-General, I must note that the position taken by him was only an assumption in theory. On practical side, according to him, the question did not arise. I, however, do not agree with him. Sub-Articles (1) and (2) of Article 281 of the interim Constitution, as interpreted by him and the learned Advocate-General, leave no doubt in my mind that the National Assembly, if that interpretation is accepted, has already made such a provision, though retrospectively. I will revert to this aspect in the end of this part of the judgment. However, at this stage it is necessary to note that according to that interpretation the National Assembly has legitimised the entire taking over of State power and autocratic rule for three years by Yahya Khan, without making any exception with regard to anything done by him or his regime.
523. ' Support is sought from the British system of constitution to canvass that the Assembly is omnipotent. I have intentionally used the word "system'. Because the English people have no one written Constitution. It is a combination of history of monarch and parliament in England, the traditions of the English people, constitutional conventions and practices, some of the British statute laws, the unitary form of Government and the position the superior Courts in that realm have accorded to their Parliament (i,e,, the King in Lords and Commons). The combination of all these factors has produced a constitutional concept in England, namely, that there is absolutely no limitation on the powers of the Parliament. If one were to make an attempt to find out some specific legal provision in that behalf, it will be an exercise in futility. Despite that, the Courts in England and elsewhere have sometimes assumed that this concept as an essential part of the Constitution of England. If without a written Constitution there can be a constitutional assumption with regard to the extent of and limitation (or to be precise, absence of limitation) on the powers of a Parliament, why it cannot be so, though in a contrary manner in the form of unwritten constitutional limitations, in respect of another similar institution. However, the matter does not rest here. Political thinkers are not unanimous on the point that there are no constitutional limitations on the power of the British Parliament.
524. ' The views of Austin and Dicey on this subject are well-known. Dicey, while commenting on Austin regarding the latter's view on the sovereignty of the British Parliament, made the following comment under the heading, "Difficulty from actual limitation on power of Parliament" in the book "An Introduction to the Study of the Law of the Constitution" :- "Every one, again, knows as a matter of common sense that, whatever lawyers may say, the sovereign power of Parliament is not unlimited, and that King, Lords, and Commons united do not possess anything like that 'restricted omnipotence'-if the term may be excused-which is the utmost authority ascribable to any human institution. There are many enactments, and these laws not in themselves obviously unwise or tyrannical, which Parliament never would and (to speak plainly) never could pass."
525. ' Dicey then goes on to examine in detail what he terms as external and internal limitations on the exercise of sovereign power by the Parliament. In the ensuing discussion, examples are cited that Parliament would not "prolong by law the duration of an existing House of Commons" and, generally speaking, it would not "embark on a course of reactionary legislation". Dealing with the internal limitations, his comment proceeds:- "Even a despot exercises his powers in accordance with his character, which is itself molded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs. The Sultan could not if he would change the religion of the Muhammedan (with respects to the learned author the correct expression is Muslim) world, but if he could do so it is in the very highest degree improbable that the head of Mahommedanism should wish to overthrow the religion of Mahomed (should be Islam) ; the internal check on the exercise of the Sultan's power is at least as strong as the external limitation."
526. ' Earlier, a view was expressed that "what is true of the power of a despot or of the authority of a constituent assembly is specially true of the sovereignty of Parliament". The conclusion on this subject is as follows:- "If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue eyed babies would be illegal ; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it."
527. ' And I may add that the epithet for the judiciary which would accept such a legislation as valid could not be of lesser import. Under the heading, "Foreign Non-sovereign Legislatures";, Dicey has opined that proper investigation would "in many or in most instances show that an apparently sovereign assembly is in reality a non-sovereign law-making body". He then gives the examples of French and some other continental constitutions ; and in the ensuing discussion took note of the fact that the French Constitution-makers and their continental followers have declared on the face of the constitution the exact limits imposed upon the authority of the legislature and they have laid down as articles of the constitution "whole bodies of maxims intended to guide and control the course of legislation". The Chapter on non-sovereign law-making bodies is closed with the subject of "safeguards provided by founders of United States" who "unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legislatures from making laws in excess of their powers, as to the invention of means by which the effect of unconstitutional laws may be nullified....This system, which makes the judges the guardians of the constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation". I may add here that the most vivid example of limitations on any assembly constituent or otherwise is that of Japanese Constitution of 1946, Some of its provisions are perpetual and are binding on the future generations as well (Articles 9 and 97). It is useful here to further quote Dicey's view on the comparison between the subject of "parliamentary" and "constitutional" sovereignty. He observed - "This doctrine of the supremacy of the constitution is familiar to every American, but in England even trained lawyers find a difficulty in following it out to its legitimate consequences...........
528. The one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament. But this dogma is incompatible with the existence of a fundamental compact, the provisions of which control every authority existing under the constitution." Here he 'died on Kent, Commentaries 12th Ed., 1873), paras. 447-449. In the Introduction to Dicey's Book by E C S Wade; distinction between the functions of the judiciary in United States and Canada on the one hand and England on the other is brought out in a pithy comment as follows :- "The judges can hamper a New Deal, whether in the United States or in Canada by a single judgment on a point of law. No such function can fall to the House of Lords sitting in its appellate capacity." .............................................................
529. ' It may then be argued that the Federal State constitutes a bulwark against dictatorship."
530. ' I am conscious that a fine distinction can be made between the legally enforceable limitations on a Parliament and those which are enforced only through public opinion. A similar distinction can be made between constitutional limitations on a subordinate legislature and the limitations on a constituent assembly. Some comment has appeared in this behalf in the above discussion which essentially deals with the question of limitations on the powers of the chosen representatives whether they formed a legislative assembly, a constituent assembly or a Parliament of the type in England. In short, in many countries including England, the history, trait and character of people, conventions, written instruments like Magna Charta (both in England and America) have been treated as supra-constitutional limitations on legislative bodies whether called by the name of legislative assembly, congress, constituent assembly or Parliament. Some of these elements have been enforced by the higher judiciary in those countries. Others have been left to be enforced by public opinion only. It is, therefore, not correct to say that in the present day world with the recent development in constitutional thought, any assembly of chosen representatives can be treated as absolute sovereign and independent of any limitation whatsoever. Here I cannot do better than to use the phrase borrowed in Dicey's Book from Jenning's book "Laws and the Constitution", namely, that `if the doctrine of parliamentary sovereignty involves the attribution of unrestricted power to Parliament, the dogma is no better than a legal fiction, and certainly is not worth the stress here laid upon it'.
531. ' It would be seen that the concept of sovereignty of British Parliament, to which some judicial recognition has been accorded, is the resin of several factors including conventions which, it cannot be denied, have played an important role in the development of this concept. In other words, the Courts have given effect to the conventions and have treated them as having binding constitutional force. It would not, therefore, be possible to canvass that if Courts can give constitutional recognition to conventions in England, they cannot do so in Pakistan. A possible answer to this proposition may be found in the fact that in England there is no written Constitution while in Pakistan we have had written Constitutions. I have already indicated that the British Constitution is not entirely unwritten. A part of it is statute law. In his Book "Introduction to Political Science" in Chapter dealing with Constitutions, Raymond Garfield Gettel has expressed the view that : "The fundamental principles that determine the form of a state are called its constitution. These include the method in which the state is organized, the distribution of its sovereign powers among the various organs of Government, and the scope and manner of exercise of Governmental functions. The constitution does not create the state, but is the outward formulation of state existence. Every state, therefore, has a constitution. In recent years it has become customary for states to put certain of these principles into written documents, calling these their constitutions, and a distinction is often made between those states, such as the United States, Germany and France, having written constitutions ; and others, such as England and Hungary, whose organizations rest upon long-standing custom or upon scattered laws variously created.
532. ' In reality this distinction is of little value. No constitution is entirely written or entirely unwritten. That of England, largely unwritten, contains such written documents as Magna Chaita, the Bill of Rights, the Act of Settlement, and the statutes of the past century regulating the system of representation and the exercise of suffrage. On the other hand, the United States Constitution, fundamentally written, includes many principles not found in that document,-the organization and powers of political parties, the method of choosing the president, and the opposition to a third term serving as examples."
533. ' This subject will not be complete without making references to Craies on Statute Law, 5th Edition, pages 46u-461 ; Cooley's Constitutional Limitations, Vol. I, 8th Edition, pages 142, 358, wherein many examples of supra-constitutional and historical instruments and concepts, not specifically found in the formal constitution, have been enforced as constitutional limitations. A recent example from our neighbouring country India is also of relevance. In Golak Nath v. State of Punjab (1) the majority of the Judges of that Court not only took note of such limitations but also made pointed reference to their own Objectives Resolution of 1946 (pre-Partition and much before the Indian Independence and framing of the Constitution) and held by making references to material outside the language of the constitution that a certain part thereof was unalterable, not even by its amendment. The discussion on this particular subject can be concluded by the following observation of Gettel "The constitution of a state, therefore, of that mass of custom, those fundamental and often revolutionary-formed principles, and such laws, created by special or regular organs, and combined, determine the organization of the State."
534. ' It needs to be noticed that Gettel has made use of about two dozen works of celebrated authors on the above aspects of constitutions.
(I) AIR 1967 SC 1643 ' I agree that while some of the unwritten parts of the Constitution would not be strictly enforceable as law and public opinion only would be the force behind them, at the same time some of the written parts of the Constitution would often contain elements that may not be technically termed as Constitutional. When the question comes before the Courts it would depend upon the nature of each element of Constitution canvassed whether it is enforceable by Courts or only by public opinion. It is interesting to note that the American Constitution is generally known to be one written document. In Duncan v. Kahanumoku (1) which incidentally dealt with the convictions and continuance of sentences under Martial Law imposed in the island of Hawaii during World War II, extensive references were made to material other than the written Constitution ; for example : the "poliosophy and institutions" ; Psychological make-up of the American people in "abhorrence of military rule" and "supremacy of the civil over the military" ; the knowledge of the founding fathers about the "dangers of despotism" ; the "demonstration in history against despotism" ; the provisions inserted in the "earliest state constitutions." Gettel in "Introduction to Political Science", while dealing with almost the same subject, cited the examples of Mayflower Compact (1620) and Fundamental Orders of Connecticut (1639). So much so that it was considered the duty of the Supreme Court "to give effect to that heritage at all times, that it may be handed down untarnished to future generations". Examples can be multiplied when important cases were decided in American jurisdiction in addition to the above and many other supra-constitutional considerations, on the basis of what the constitutional writers termed as "the spirit of the constitution". The editors of the American Jurisprudence, 2nd Edition, in para. 71 under the heading "Consideration of spirit, as against letter" and foot-note 13 thereunder, have discussed this subject with reference to many more decided cases and have come to the conclusion that so far there are two conflicting theories on the subject. They have suggested the reconciliation thereof by "(1) broadly looking at the spirit of the constitution to carry out a purpose which is held to be paramount, although not expressed by the language actually employed, hence postulating an intent in spite of clear language, and (2) not postulating any intent where language is clear and unambiguous". I may remark that I have referred to the subject of spirit of the constitution in decided cases in the American jurisdiction, not with a view to show that this has always been a consistent way of finding and interpreting the constitutional provision as, of course, there have been dissents but my intention is to show that under the American Constitution, which is generally known as the precursor of all modern written constitutions, resort to the spirit of the constitution is not prohibited in the Courts of the realm. 1 would later on show that in so far as the constitutional position in Pakistan in particular is concerned. Now there is no question of any dissent on this subject. Mr. A. K. Brohi in his book on "Fundamental Law of Pakistan" has cited some more cases on the question of spirit of the constitution. They are Loan Association v. Topeka (2), Fallbrook Irrigation District v. Bradley (3), Downes v. Bidwell (4) and Dorr v. United States (5). With due respect to the learned author (both due to his learning and the experience) he, in 1958 when he completed his celebrated work, was to a very large extent influenced in
(1) 327 U S 304, 1945 Term (2) 20 Wall 655
(3) 164 U S 112 (4) 182 S U 244
(5) 195 U S 138 this behalf by some commentators who were against the 'spirit' theory. He did not then take sufficient notice of the other point of view. He also, it appears, was influenced by a judgment of Chief Justice Marshall in the old case of Sturges v. Crown in Shield (I) and also one of the earliest judgments of the Supreme Court of India on this subject, namely, Gopalan v. State of Madras (2). If he would have noticed and analysed later cases like the one I have already cited, namely, that of Duncan (1945) from American jurisdiction and the Indian case of Golak Nath decided by the Supreme Court, his views might have been different. I cannot ignore and fail to notice the evolution in the thought process of Mr. Brohi till 1972 when appearing as amicus curiae in the case of Asma Jilani, he placed before the Supreme Court of Pakistan, a theory which, if I may say so, is essentially based on the spirit of constitutional law in Pakistan. I, therefore, am unable to adopt the earlier view of Mr. Brohi on the question of interpretation of constitutional law with reference to the spirit of the constitution.
535. ' As a result of the above discussion, I hold that while interpreting the constitutional principles and law in Pakistan, resort is not only permissible but also necessary to spirit of the constitution as also to concepts, conventions, events and instruments which have constitutional value and/ or bearing.
536. And in proper proceedings and cases it is open to the Courts to apply and enforce them whether as mandates or as limitations. It is not difficult to find the spirit from the Holy Qur'an and Sunnah and the other elements from the history of Islam with special reference to Muslims of South Asian Sub-Continent and ideology of Pakistan.
537. ' In the light of the above discussion and finding, I proceed to examine the position in our constitutional system of the Objectives Resolution passed on 12th March, 1949, with particular reference to limitations provided therein for the constitution-makers in Pakistan. It was passed by the first Constituent Assembly of Pakistan and there is no doubt about the proposition that there is a marked difference between the first Constituent Assembly of a country and subsequent Constitution-making bodies whether for purpose of amending, re-enacting or replacing a constitution. It is also well-known that the then Constituent Assembly included persons from both Wings who had not only directly taken part in the political and constitutional struggle for the creation of this State but had also close association with Quaid-i-Azam Muhammad Ali Jinnah, its founder, whose views on vital questions of future polity were known to them. If I call them the founding fathers, it will not be a wrong appellation. The first Constituent Assembly is 'to be regarded as a body created by supra-legal power to discharge the supra-legal function of preparing a constitution for Pakistan. Its powers in this respect belonged to itself inherently, by virtue of its being a body representative of the will of the people in relation to their future mode of Government.... . ...
538. The Constituent Assembly too was a supra-legal body, not acting in its constitution-making capacity within the Constitution'. (Jennings on Constitutional Problems in Pakistan). The Judicial recognition to this princip can be found in the discussion on this subject by Yaqub Ali, J. In Astna Jilani's case. The distinction between the first Constituent Assembly and the present National Assembly while framing a constitution for Pakistan is obvious. The former was to create the edifice for an absolutely new constitution and thus was by virtue of its inherent position required to lay down some vital
(1) 4 L Ed. 529 (21 AIR 1950 SC 27 immutable and unalterable fundamental principles, on the basis of which the future constitution of Pakistan was to be framed. The latter, which quite correctly has while adopting the interim Constitution refrained from calling itself a constituent assembly (Resolution at page 622 of PLD 1972 Central Statutes Part), cannot assume the position of the first Constituent Assembly of Pakistan. At best, its role can be considered as that of an assembly re-enacting or replacing a constitution and not that of a Constituent Assembly creating for the first time the basic constitutional norms for the country. The purpose of pointing out the above distinction is only to bring into focus the limitation on this assembly imposed by the Objectives Resolution which, in view of its peculiar position, cannot be changed by it.
539. ' While dealing with the constitutional position of the Objectives Resolution, I made the following observation in the order, dated 17th April, 1972, in the journalists' case :- "The State of Pakistan was founded through the expression of will of the Muslims of the sub- continent. The emergence of this state cannot be de-linked from its ideology for the preservation of which all our past and future generations are equally involved. No one generation, community, organ or individual in this State has any power to undo the same or weaken its foundation in so tar as its basic realities are concerned. This underlying philosophy has been stated in a supra constitutional Instrument to which not only our founding fathers but also the people at different times of our short history have assented: It is the Objectives Resolution passed in 1949. All the constitutional documents intended to work as permanent Constitutions were purported to have been based on this supra-constitution...
540. ' There are several mandates in it. Only some of them are relevant in this case. They are :
(1) 'the State shall exercise its powers and authority through the chosen representatives of the people' ;
(2) ...
(3) ... ... ... ... ...
541. ' The present and all the future generations of this nation stand irrevocably committed to run the State in a democratic manner 'through the chosen representatives of the people' The only circumstance that the mandates in the Resolution were adopted as preambles in different Constitutions does not mean that it has lost its binding force. It has not been repealed nor abrogated, not even formally, by promulgation of Martial Law either in 1958 or 1969. Indeed, it is so fundamental and contains such mandates that it cannot at all be repealed or abrogated and is permanent for all times to come. Its form, i. e., Resolution, only signifies the 'will' of the 'Nation'. Even technically there is nothing wrong in enacting, promulgating and enforcing such a resolve in the form of an Instrument of Resolution. The interim Constitution being debated upon in the National Assembly is also intended to be passed by means of a Resolution. Thus there is no technical bar to treatment of Objectives Resolution as a supra-constitution. The Courts in this country are bound to follow and enforce it. The mandates are concrete and have to be given full effect. From what has been said above it follows that the State of Pakistan cannot exercise its powers and authority through an individual or group of individuals in the name of any one person, organ or institution of the State including the Armed Forces. In other words, despotism has been banished from Pakistan once for all and the State power can never be exercised except through chosen representatives of the people. The promulgation of Martial Law and abrogation of Constitution by the Commander- in-Chief in the name of Armed Forces and assumption of political power under any garb whatever was against the very basis on which this State was founded."
542. ' After hearing the arguments in these petitions from both the sides, I confess, of course with due respects to the learned Attorney-General who contested these views, I have not been impressed by his arguments and am unable to modify them. The more I read on this subject the stronger my belief got that the Objectives Resolution is a supra-constitutional Instrument which is unalterable and immutable and that the present National Assembly has no power to enact any Constitution or law which either directly or indirectly contravenes any of the provisions of the said Resolution.
543. Before I come to the detailed and very valuable discussion on this subject by the Supreme Court in Asma Jilani's case, I deem it necessary to make brief reference to the proceedings of the first Constituent Assembly of Pakistan from 7th to 12th March, 1949. The late Quaid-i-Millat, the then honourable Prime Minister, Liaquat Ali Khan, before moving the Resolution, was pleased to observe that it embodied "the main principles on which the constitution of Pakistan is to be based". I need not re-quote the Resolution as it has been quoted in Asma Jilani's case. After reading the Resolution, Mr. Liaquat Ali Khan said :- "I consider this to be a most important occasion in the life of this country next in importance only to the achievement of independence, because by achieving independence we only won an opportunity of building up a country and its polity in accordance with our ideals. 1 would like to remind the House that the Father of the Nation, Quaid-i-Azam, gave expression to his feelings on this matter on many an occasion, and his views were endorsed by the nation in unmistakable terms. Pakistan was founded because the Muslims of the subcontinent wanted to build up their lives in accordance with the teachings and traditions of Islam, because they wanted to demonstrate to the world that Islam provides a panacea to the many diseases which have crept into the life of humanity today."
544. ' It is a lengthy speech and every word of it is full of deep meanings. The reading of the debate on this Resolution running into 102 closely printed pages (Constituent Assembly of Pakistan Debates, Volume V-1949) shows how importance was given to it as a Constitutional Instrument. There were elaborate arguments both for (by Muslim members) and against (by some non-Muslim members). In his concluding speech, in answer to what appeared to be some uncharitable remark, Mr. Liaquat Ali Khan prophesied," ...... If we succeed in building Pakistan on the basis of this Resolution, we shall be able to create conditions that the posterity instead of cursing me, will bless me."
545. ' I am conscious that debates on a legislative measure are, generally speaking, not conclusive in so far as the interpretation of the language used in the resultant instrument is concerned. But while interpreting historic instruments of great constitutional importance, the words used by the framers in their speeches are not at all irrelevant and, in any case, while interpreting the constitutional concepts in Pakistan, these debates, in my view, are entirely relevant. It appears from the debate that considerable time was spent in preparing the Resolution and still more tine was devoted in discussing the same. It was passed as a legal instrument in the form of a Resolution.
546. ' As already indicated, it is not an unusual way of creating constitutional instruments. The constitutional conventions are almost always in the form of resolutions and the present interim Constitution has also been passed by the following Resolution :- "(Gazette of Pakistan, Extraordinary, 20th April, 1972) No, F. 28 (1)
547. 12/72-Legis.-The National Assembly of Pakistan adopted the principal Resolution for enactment of the Interim Constitution for the Islamic Republic of Pakistan. ... ..The above Resolution is hereby published for general information." (Underlining* is mine.)
548. ' So far as the form, therefore, is concerned, there is nothing wrong in the Objectives Resolution being treated as constitutional instrument provided, of course, its content contains constitutional concepts.
549. ' A constitution can be a very short instrument or a lengthy statute. I have already referred to views of some constitutional thinkers on this subject. It may contain only few clauses relating to the basic organization of the State or provide for matters of detail dealing with each organ and function thereof. Some thinkers have preferred comparatively brief and simple constitutional instruments so as to serve more effectively the purpose for which the constitutions are designed. To the similar effect are the views of Mr. A. K. Brohi. (See his book on 'Fundamental Law of Pakistan', page 7). I have been able to check only one volume of Amos J. Peaslee's Constitutions of Nations. There are three Constitutions with 15, 19 and 30 Articles only. Thus, the simple fact that the Objectives Resolution contains only about a dozen principles does not mean that it is not a constitutional instrument.
550. The learned Attorney-General tried to emphasize that the main features of the Objectives Resolution were included in the form of preambles to the various Constitutions of Pakistan ; therefore, it should not be given any more value than that of a preamble. I do not agree with him.
551. The Objectives Resolution has an independent existence of its own. It was passed by the Constituent Assembly in 1949 while the enactment of the first Constitution started some years later.
552. In the Constitutions, some principles contained in the Objectives Resolution were adopted in the preambles and some others were included in the main constitutional, provisions. But that does not mean that if they had not been so included, w the Objectives Resolution would not have had any force. To put the w argument in another form will further illustrate the point. Supposing, some provisions contained in the constitution Acts of 1935, 1956 or 1962 are adopted and reproduced in the interim Constitution of 1972. Will I be possible to argue that by reason of this adoption the value of th provisions in the original Constitutions is reduced ? The answer will be in the negative.
553. Moreover, if a preamble re-affirms the provisions of th Resolution, it would no more be treated as a preamble in the ordinary Sense. Examples can be cited of French Constitution of 1946, the Preamble *mere in italics] whereof adopted a constitutional instrument of 1789 as conferring inalienable rights. In the Preamble of the Constitution of Poland of 1947 similarly, instruments of basic constitutional value were adopted as governing the Constitution. Here 1 may quote the words of the Attorney-General himself from the judgment in .4sma case. In answer to Mr. Brohi's description of the Resolution as "corder stone of Pakistan's legal edifice", the learned Attorney-General recognized that it is a -bond which binds the nation" and is a document from which the Constitution of Pakistan "must draw its inspiration". With regard to ordinary preambles, the general interpretation is that the enacting part need not necessarily conform to the preamble, but here the position as pointed out by the learned Attorney-General himself is different. The Constitution of Pakistan must be in accord with the objectives Resoultion. If it does not, the Courts would not, rather would have no jurisdiction to recognize it as a Constitution. Even if the other expression used by the learned Attorney-General, i. e., "the bond which binds the nation" is given its full meaning, the Preamble, if it contain the Objectives Resolution, does not remain an ordinary Preamble and the Courts have to give full effect to it. This view finds further support from the form the Constituent Assembly gave to it. If one reads the entire debate on this Resolution, a reference to which has already been made, a clear impression is created that most of the speakers including those on the Opposition side, treated the Resolution as laying down fundamental constitutional principles which were to be enforced while making the detailed Constitution. So much so that even in technical form the Resolution was treated as a piece of legislation ; because apart from the nine clauses containing clear mandates, it has a preamble of its own. It is the part of its preamble wherein the concept of the sovereignty of Almighty Allah and trust thereunder was acknowledged and Mr. Bhupendra Kumar Datta, an East Bengal Member, keeping this (preamble of the Resolution) in view made a brilliant speech exhausting all possible reasons to oppose the introduction of that preamble in the Resolution. It is interesting to note that some of the arguments in that criticism have been repeated before us in this case. The speeches in reply to the criticism were, in no way, less brilliant in thought, reasoning and overall content. It may be noted here that there appears to be an inadvertent omission in the Resolution quoted on page 969 of dr. A. K. Brohi's book, It is the sixth clause dealing with the guarantee of "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". (See official reports of the debates of the Constituent Assembly of Pakistan, dated 12th March, 1949, page 100). Without conceding that the Objectives Resolution has the value only of a preamble of a constitution, I may mention here that even on question of the value of an ordinary preamble. Cases are not lacking where it was held that preamble can be a guide to resolve questions of intention and construction ; that the enacting part is limited by the preamble qua its scope ; that the facts mentioned in preamble are proof of themselves ; that a preamble can restrain an Act ; and that preamble is the most important part of an Act as its purview. Reference can be made to Maxwell on Interpretation of Statutes. 11th Edition, pages 43 to 45 and 48 ; and Craies on Statute Law, 5th Edition, pages 186-188 ; and also to the ruling of the Supreme Court in Rehmatullah v. The Deputy Settlement Commissioner (1) wherein a major controversial point in the
(I) PLD 1963 SC 633 Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1956) was resolved by making direct reference to its preamble.
554. ' The learned Attorney-General has, before us, described the Objectives Resolution as containing only the ideology of Pakistan and, therefore, it cannot be treated as a constitutional instrument.
555. While dealing with the origin of the State, it has been observed by Gettell that 'the value of religion in the evolution of the state can scarely be overestimated...............................
556. ' The importance of religion as a force in state evolution was not limited to the earliest states alone......Long after the ties of kinship had been forgotten or merged in the general feeling of nationality, common religious beliefs were sufficient to unite peoples, to support dynasties, to create states'. None can deny the proposition that the State of Pakistan is based on its ideology the main pillar whereof is the religion of Islam. In the Objectives Resolution, some concrete concepts of Islamic polity have been adopted as mandates for the constitution-makers. This matter can be looked at from another angle also. Religious beliefs sometimes, when practised in matters of state for considerable time and mingled with other matters like character and history of a nation, give rise to conventions some of which may become constitutional and are then enforced as such by the Courts of the country concerned. As observed by 0. H Phillips in Constitutional and Administrative Law, 4th Edition, under Chapter "Constitutional Conventions", 'it must not be supposed that conventions are peculiar to unwritten Constitutions. They are found to a greater or less extent in written Constitutions as well. Canada and Australia, for example; observe the main British constitutional conventions, and many conventions have been developed in the United States relating to such matters as the method of electing the President, his choice and use of a Cabinet, and senatorial courtesy in making appointments to offices This informal method of change is more adaptable than a series of statutes or constitutional amendments'. In expressing this opinion, the laarned author has also relied on The Usages of the American Constitution ( 925) by H W. Horwill. Under the heading, 'The purpose of constitutional conventions", many more examples have been cited which need not be repeated here. It needs to be noticed that the learned author has bracketed Pakistan with India in his discussion relating to directive principles of State policy and has observed that they are only 'for the general guidance of the Legislature but are not cognizable ny any Court'. I do not agree with him in so far as the comment relates the Pakistan. My reasons can be found in the reply to Question No, VI. I also do not agree with his opinion at page 801 of the book that in Pakistan attempt has not been made to base the Constitution, as he put it, "on a local grund norm". He either ignored the Objectives Resolution or could not comprehend its true import. Otherwise, I agree with his assessment that 'some members of the Commonwealth, a little time after achieving independence, wish to base a revised Constitution on a local grund norm ; they assert the principle of constitutional autochthony", that is that their Constitution is sprung from their native soil and not derived from a United Kingdom statute. Strictly. Autochthony requires a breach in legal continuity, an actual or technical revolution.'
557. In Pakistan the revolution, though technical, took place in 1947 when this State came into being against the wishes of the British rulers and the majority community in India which was, by and large, represented by the Indian National Congress. And to be precise, if we have to adopt Phillips' phraseology, the principle of 'constitutional autochthony' was, for the first time, formally embodied is the Objectives Resolution as the manifestation of the breaking off the ties with the British constitutional system as also with the Indian 'norms'. To quote the words of Mr. Liaquat Ali Khan, in his comment on the Resolution, our mission is "to convert Pakistan into a laboratory where we could experiment upon the principles of Islam to enable us to make a contribution to the peace and progress of mankind". We need not be apologetic in professing (because, in fact, in reality we do) that our State is an Islamic State and that we have chosen to live a full Islamic life which would encompass all aspects of modern state including its constitution. And if some support in this behalf is needed from any modern constitution, a cursory look at the Irish Constitution would show that we are not the only people who profess to have guidance from religion on constitutional matters. Thus, even on the basis of ideology, as included in the Objectives Resolution, there is no bar in treating the same of full constitutional force. The President and the members of the National Assembly, in their respective oaths, have undertaken "to preserve the Islamic ideology" which, it is assumed in the oath, "is the basis for the creation of Pakistan". It would be too much to say that the Assembly is competent to make a constitution which may go against the ideology of Pakistan or that this is not a limitation on their powers. It is in line with the above important position of the Objectives Resolution that every generation in Pakistan, so far, has treated it as the ideology of the State of Pakistan and the basis of its constitution. A clear factual proof in support of this assumption is, as observed by the Supreme Court, that it has been adopted as a part of all the Constitutions so far framed and also that even the usurpers could not dare exclude it from their so-called legal set- ups.
558. ' One argument against the treatment of the Objectives Resolution as a constitutional instrument, which the learned Attorney-General thought could be formidable, is that it contains two general principles to be applied as precise constitutional and legal provisions to particular cases coming before the Courts. With reference to the views of A. V. Dicey and other authors on this subject, I have mentioned elsewhere that even general maxims have been included as parts of some constitutions. A bare reading of the text of some constitutions in any compilation, particularly those relating to Europe, would show that use of general principles in very general terms has been a rule and not an exception. One in particular is the American Constitution which undoubtedly is a written constitution and has been commented upon more than any other such constitution. There is no doubt about the fact that it has been applied and interpreted as a perfect constitution by all concerned including the superior Courts of that country, It has also been well-understood and copied and followed in other countries. Yet nobody can say that all its provisions, when originally enacted, were considered as of precise application. For example, the expressions "due process of law", "public welfare" and "political necessity" could not initially be considered as precise as they have been made by judicial pronouncements by now. Mr. A. K. Brohi, in his book on 'Fundamental Law of Pakistan' has described the American Constitution "merely as sketches or outlines of constitutional principles" and while doing so, he has relied on a statement by Munro in "The Government of the United States", a part of which is reproduced as follows :-- "The architects of 1787 built only the basement. Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russel Lowell, is still being 'woven on the roaring loom of time'."
559. ' It is the enforcement and application of a certain constitutional instrument by the organs of the State, particularly the Judiciary, which gives it clear and precise meanings. Judges in Pakistan are well familiar with rulings of superior Courts of historical importance wherein the Qur'an and Sunnah have been interpreted and applied as law. Difficult expressions which an outsider would treat as too general to be applied as law have been so applied with precision. I will cite only one example, namely, the case-law on %hula' with particular reference to the expression "the limits of God". About Objectives Resolution, if one may say so, the Courts have started recognizing its real value only since the beginning of 1972. Even in this short period, the two provisions of the Objectives Resolution which came up for interpretation before the Supreme Court and this Court, have not only been found to contain precise meaning and connotation but have also been applied to concrete cases.
560. My reference is to the judgment of the Supreme Court. In Asma Jilanrs case and the earlier order of this Court in the Journalists' case. The learned Chief Justice, at page 182 of the report of the first case, took up the provision which, in my view, is most difficult of all the provisions in the Resolution, of precise judicial application. It is "sovereignty over the entire universe belongs to Allah Almighty alone and the authority to be exercised by the people of Pakistan within the limits prescribed by him is a sacred trust". This provision contains two concepts: one, of "sovereignty of Allah"; and the other, of the authority to be exercised by the people of Pakistan as only a "sacred trust". His Lordship quoted the relevant verse from the Holy Qur'an, stated the ordinary meanings thereof and then interpreted it as follows :- "The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach. Of trust or discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law."
561. ' The learned Chief Justice then proceeded to examine the views of Von Hammer, John Locke and Hobbes with reference to his own answer and interpretation of the concepts involved and mentioned that "this trust concept of Government filtered into Europe through Spain". Concept of sovereignty of God .c an clearly be seen in Article 6 of the Constitution of Ireland of 1937. Religion has also been recognized therein as a source of Constitution. I have found an interesting discussion by A. V. Dicey on the trust theory in his book `An Introduction to the Study of the Law of the Constitution'. The learned author, while commenting on Austin's views, that the members of the House of Commons are merely trustees for the body by which they are elected and appointed, observed follows :- ' Austin owns that the doctrine here laid down by him is inconsistent with the language used by writers who have treated of the British Constitution. It is further absolutely inconsistent with the validity of the Septennial Act. Nothing is more certain than that no English Judge ever conceded, or, under the present constitution, can concede, that Parliament is in any legal sense a 'trustee' for the electors.. Of such a feigned 'trust' the Courts know nothing."
562. ' With respect to the learned author and other authors on the subject of parliamentary sovereignty, I would remark that even though in our case the concept of trust is a different one with different source and meaning, it cannot be said that our Courts "know nothing" about the elected members being the trustees of Another Being or that no Judge in this country "ever conceded" that the parliament is only a trustee. Our Chief Justice has not only conceded this but has also laid down as a part of our constitutional law, that the entire body-politic is the first trustee from Allah and further that the State functionaries are appointed by the first trustee on its behalf and for its benefit. With respect, I may say that the Legislature and its members are one major department of State functionaries because the learned Chief Justice concluded this subject by the observation that "the trustees under this concept of ours are referred to as{{URDU TEXT}} WI "those who are in authority among you" (Pt. 4, Ch. 4, Ay. 60; Al-Nisa, p. 207) which again negates the possibility of absolute power being vested in a single hand, for, the reference is clearly to a plurality of persons and to an authority properly constituted by law''. "Upon this analysis", the learned Chief Justice gave the decision on a very important point involved in the case, that the views expressed by one of his learned predecessors (Muhammad Munir, C. J.; in Dosso's care) were "wholly unsustainable". The second provision of the principle contained in the other provision of the Objectives Resolution namely, "the State should exercise its powers and authority through the chosen representatives of the people" was also, as will be presently shown, applied by the Supreme Court in Asma jilani'scase.
563. Its meaning and scope were interpreted and given due recognition, validity and force as constitutional provision in the majority order of this Court also in the Journalists' case. The above discussion would show that when mind is properly applied to the provisions of the Resolution, and of course by passage of time, each concept contained therein would not only be known but also be treated as a specific constitutional mandate. I, therefore, repel the argument that the provisions , of the Resolution are too general or vague to be interpreted as constitu-IX mandates and hold that they are capable of enforcement as such..
564. ' Another objection to the treatment of the Objectives Resolution as constitutional provision, namely, that such a course will create a multitiered Constitution in Pakistan, can be met with a simple reply that there is nothing wrong with such a constitutional system, neither on the basis of any law nor principle. Multi-tiered system of constitutional protections has been visualized in the Constitutions of Republic of Cyprus, West Germany and Fifth French Republic. Moreover, in our own constitutional history, there are at least two, if not more, distinct periods where multi-tiered constitutional system has been enforced by the Courts. The most vivid example is that of Ayub Khan's Martial Law period 1958 to 1962, wherein Laws (Continuance in Force) Order and some other instruments were treated as supra-constitution while the provisions of 1956 Constitution were treated as ordinary Constitution and there are some cases in which the working of both can vividly be seen. One example can be cited of Muhammad Afzal v. Commissioner, Lahore Division (1), about which the learned Chief Justice, (who then wrote the leading judgment), made the following observation in Asma Jilani's case :- "Again, the question that arose for decision in that case was as to whether Martial Law Orders issued by a Zonal Martial Law Administrator, which purported to make provisions inconsistent with the provisions of the Constitution of 1956 and other existing laws, were of any legal effect and could validly take away the rights of citizens acquired under the latter provisions. The main argument was built up again upon the language of Articles 2 and 4 of the Laws (Continuance in Force) Order without challenging the validity of the said Order itself and this Court held the impugned Martial Law Orders to be incompetent to the extent they were repugnant to the existing laws, even under the Scheme of the Laws (Continuance in Force) Order, 1958,.
565. ' There are many cases in which the Laws (Continuance in Force) Order was treated as `supra- constitution', meaning thereby that it was at a particular time controlling the ordinary constitutional provisions. With the difference recently brought about by Asma Jilani's case, similar position can be visualizea in the period between March, 1969 and April, 1972. In any case, there is no denying the fact that even during the normal constitutional period, namely, 1947 to 1958, the position accorded to the Indian Independence Act of 1947 vis-a-vis the Government of India Act, 1935, both of constitutional import, can be cited as another example. Above all, howsoever our constitutional history is divided, one fact remains clear that the superior Courts applied certain principles as constitutional mandates in spite of there being constitutional provisions. For example, in 1954-55 the maxim `'sales populi est suprema lex" was treated as a maxim of supra- constitutional import and was given the same effect by the Federal Court of Pakistan in special reference case Reference No, I of 1955 (2). It has again been utilized as supra-constitutional mandate while resolving another constitutional controversy in 1972 in Asma Mani and Journalist's cases. Another similar principle, namely, audi alteram partem has, by now, assumed a supra- constitutional import because even' though it is not mentioned as a specific provision in the Constitution, in the absence of any provision to the contrary the same has always been applied as a superior law of this land while applying the Constitution as well as ordinary laws. Examples can be multiplied, but it is not necessary to do so. I am of the view that the position of the Objectives Resolution is much higher than the other above cited so-called supra-constitutional laws.
566. Therefore, I reiterate my view expressed in the earlier order in Journalists' case that it is Supra- Constitutional Instrument.
567. ' I had to enter in the above lengthy discussion on the subject of constitutional aspects of the Objectives Resolution because the learned Attorney-General did not accept the proposition that it has the effect
(1) PLD 1963 SC 401 (2) PLD 1955 FC 435 of a supra-constitution nor, he asserted, it has been so held by the Supreme Court in the case of Asma Mani. If their Lordships would have held otherwise, namely, that it is not a Supra-constitutional Instrument, I would not have at all entered into this controversy and would have respectfully followed the ruling. On the contrary, after carefully reading the judgment, I am of the firm view that without saying so in so many words, their Lordships have given the effect of a Supra-constitutional Instrument to the Objectives Resolution.
568. The following analysis of the judgment in this behalf will clarify the position :- ' Judgment of Hamoodur Rahman, C. J., with whom Waheeduddin Ahmad, J., agreed.
569. ' It was noted in the beginning of the judgment that Mr. Manzur Qadir had invited the Supreme Court to lay down, if necessary, "new norms and examine the foundations of the norms themselves in order to determine the nature, scope and content of the law in accordance with which we are bound by our oaths to administer justice". His Lordship took note of the evolution in the views of the Supreme Court on the question of the norms and observed that "some doubts had, therefore, begun to be cast by the Supreme Court, as then constituted, on the correctness of the decision in Dosso's case even from 1961". And while dealing with the question of stare decisis, it was thought that "it is equally important to remember that there is need for flexibility in the application of this rule, for, law cannot standstill nor can we become mere slaves of precedent". Mr. Anwar's argument that the Objectives Resolution is the grund norm for Pakistan was explicitly noticed and then the discussion follows on the concept of grund norm in Kelsen's theory. And while observing that according to some critics "a whole idea of this basic norm (in Kelsen's theory) still remains shrouded in mystery", the learned Chief Justice described it only as a thought norm which could hardly be recognized as a legal norm furnishing a criteria of legal validity in any legal system.
570. However, the teal theory of grund norm was then clearly -explained that revolutions "do not acquire any valid authority to rule or annul the previous grund norm until they have themselves become a legal order by habitual obedience" or submission from the citizens. And ultimate will of the people was treated as always the . Deciding factor. From this line of reasoning, his Lordship then propounded his own theory that "our own grand norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution". To me, it appears that it was in the above context that his Lordship then noticed with approval the argument of Mr. Brohi that this Resolution is the "corner stone of Pakistan's legal edifice". Why T say so with respect, is supported by the next following observation that the Resolution has been recognized even by the Attorney-General himself as the bond "which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". If my reading of the judgment is correct, then the Objectives Resolution, to borrow the phrase used by Mr. Brohi, being the "corner stone of Pakistan's legal edifice" is a document of supra-constitutional importance. Moreover, the learned Chits' Justice particularly noted that it has not been abrogated by any one. Again, with respect, I must remark that the expression "abrogated" was used in a constitutional sense. Then follows a very valuable discussion on the subject of Al'ah's sovereignty wherein his Lordship reached the conclusion that in our concept there is a negation of the possibility of absolute power being vested in a single hand because the reference in our grund nurm "is clearly to a plurality of persons and to an authority properly constituted by law". The concept thus explained cannot be termed as other than constitutional and it was "upon this analysis" that his Lordship overruled the judgment of the learned Chief Justice in Dosso's case. There is a small scope for argument that the learned Chief Justice treated the Preamble of the Objectives Resolution, which contains only the concepts of the sovereignty of Allah and the trust, as the grund norm in Pakistan and not the whole of the Resolution. I do not subscribe to this analysis. 1 have already mentioned that his Lordship noticed Mr. Brohi's argument wherein the entire Resolution was described as corner stone of legal edifice of Pakistan and the admission of the learned Attorney-General that it is a document of constitutional importance. Therefore, the Resolution as a whole ,was treated as the basic norm of Pakistan. I, however, agree that it was on the oasis of precise interpretation of only the Preamble of the Objectives Resolution and not the other clauses thereof, that his Lordship came to a conclusion of great constitutional importance for Pakistan and also overruled the judgment in Dosso's case. It needs to be mentioned that the concept of negation of vesting of absolute power in a single hand and affirmation of power in an authority, "properly constituted by law", "in plurality of persons" is, apart from the preamble, also specifically included after the preamble, in the very first operative clause of the Resolution; wherein it is prescribed that the State shall exercise its power and authority through the chosen representatives of the people". Thus, in my view, the learned Chief Justice having treated the Objectives Resolution as a basic constitutional instrument relied on a part of it for the purpose of overruling an important aspect of the judgment in Dosso's case. After clarifying the constitutional position with ,reference to the Objectives Resolution, his Lordship then applied the same: ' firstly, as already noticed, while overruling Dosso's judgment; ' secondly, while declaring Martial Law Regulation No, 78 as having been made "by an authority whose legal competence we have not been able to recognize on the ground of want of legal authority and the unconstitutional manner of abrogation of power"; and ' thirdly, most important of all, when laying down the tests for condonation (and not legitimisation) of the acts of the usurper, the Objectives Resolution was again accorded full recognition and constitutional force by the observation that if a measure of the usurper "would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution", that measure would be condonable.
571. ' One objective in our case, which his Lordship had earlier mentioned, I may respectfully state here, was the bringing in a body of, and restoration of power to, chosen representatives of the people.
572. As a result of the above analysis, I hold that the Objectives Resolution was treated as a supra- constitutional Instrument.
573. Judgment of Yaqub Ali, .J.
574. ' His Lordship quoted the Objectives Resolution and noted that the "counsel for the appellants and the amicus curiae named the Resolution as grund norm of Pakistan" while "the Attorney-General.
575. Described it as an instrument which embodied the ideology of Pakistan and which was the only bond of its unity". While examining the effects of the judgments in the cases of Moulvi Tamizuddin Khan, Usif Patel, Special Reference No, 1 of 1955 and Dosso, his Lordship observed that the country was "converted into an autocracy" and the `people who were the recipients of delegated sovereignty from the Almighty" ceased to have any share in the exercise of the State powers. It is the same concept which the learned Chief Justice had elaborated with reference to the preamble of the Objectives Resolution. The argument of Mr. Manzur Qadir was noted that the laws promulgated by Yahya Khan were "repugnant to the basic law of Pakistan viz. Objectives Resolution of 7th March" and thus were "void and of no legal effect". With respect, in my view the argument clearly visualized a supra-constitutional position for the Objectives Resolution; otherwise, the above constitutional concept of ultra vires could not have been invoked. In this behalf, the argument of Mr. B ohi was also noted that in Pakistan "the real sovereign is God Almighty and the State of Pakistan has a limited power of which it is a recipient as a trustee or a delegatee: On this hypothesis he argued that the will of one man was repugnant to the grund norm of Pakistan viz. The Objectives Resolution and in Pakistan no single man could be the sole repository of State power"; therefore, in Pakistan the power received from Almighty is to be exercised by chosen representatives of the people and not by the will of one man. After noticing various theories and doctrines about sovereignty and change thereof, it was declared that Pakistan being an Islamic Republic 'its ideology is enshrined in the Objectives Resolution of 7th March, 1949. We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of law". After mentioning the various sources of law in Islam, his Lordship further declared that the voice of the people being the voice of God is "the most fruitful source of law-making in Shariat". Thus "in the present day context the Legislative Assemblies comprising of chosen representatives of the people perform this function" and "the people as delegatee of the Sovereignty of the Almighty alone can make laws which are in conformity with the Holy Qur'an and Sunnah". With this exposition of constitutional position in Pakistan, his Lordship beckoned the judges and lawyers "to refresh their minds about the true import and form of law." This, in my humble view, is another instance where the Supreme Court recognized the need for evolution in the minds of the Judges in so far as the constitutional and legal concepts in Pakistan are concerned. His Lordship after defining the law, considering the effect of Mir Hassan's case and analysing various Martial Law measures, reverted to the basic law of Pakistan and observed that "Pakistan has unfortunately suffered long spells of Martial Law, but its basic structure was democratic from its inception'. And, therefore, "the usurpation of legislative powers of the State by the Chief Martial Law. Administrator was against the basic norm" and thus "the new Legal Order was unconstitutional and void ab initio". According to my humble analysis of the entire judgment of his Lordship, wherein: the Objectives Resolution was reproduced ; some of the concepts contained in its preamble and various clauses were alhided to and accepted as the basic laws of Pakistan; and after noticing the argument that Objectives Resolution contained constitutional provision so as to Judge the vires of usurper's laws on its basis, it was held that they were unconstitutional, void and without any legal effect.
576. ' I, therefore, am of the view that his Lordship treated the Objectives Resolution as an Instrument of supra-constitutional validity and force.
577. ' Judgment of Sajjad Ahmnd Jan, J.
578. ' His Lordship, while dealing with Kelsen's theory which was the basis of the judgment in Dosso's case, held that "theories of law cannot take the place of law and are not immutable. They connot be made generally applicable to all societies at all times. In Pakistan, in particular, we do not have to depend on Kelsen or other jurists or legal philosophers for constitutional inspiration". After making this distinction, in so far as the Jurisprudence of Pakistan is concerned, it is observed that "our grund norms are derived from our Islamic faith, which is not merely a religion but is a way of life. These grund norms are unchangeable and are inseparable from our polity". It was then held that the grund norms of Pakistan are epitomised "in the Objectives Resolution passed by the Constituent Assembly of Pakistan on 7-3-1949, and were incorporated in the first Constitution of the Islamic Republic of Pakistan of 1956 and repeated again in the Constitution of 1962. Its basic postulates are that sovereignty belongs to Allah Almighty, which is delegated to the people of Pakistan who have to.Exercise the State powers and authority through their chosen representatives on the principle of demoracy " A very important question was then posed, "Can it be argued that any adventurer, who may usurp control of the State power in Pakistan, can violate all these norms and create a new norm of his own in derogation of the same?" It was answered thus, "the State of Pakistan was created in perpetuity based on Islamic ideology and has to be run and governed on all the basic norms of that ideology, unless the body politic of Pakistan as a whole, God forbid, is reconstituted on an unlslamic pattern, which will, of course, mean total destruction of it original concept". The discussion on this subject concludes with the finding that, "the Objectives Resolution is not just a conventional preface It embodies the spirit and the fundamental norms of the constitutional concept of Pakistan This constitutional interpretation of the concepts contained in the Resolution was then applied by his Lordship: ' firstly, in the observation that the learned Attorney-General could not 'adequately counter" the arguments of Mr. Brohi which as noted earlier were mostly based on the assumption that the Objectives Resolution is the 'corner stone of the legal edifice of Pakistan' ; and ' secondly, in the findings about the source of judicial power in Pakistan and its indestructibility.
579. ' Therefore, in my humble view his Lordship treated the Objectives Resolution as a Supra- constitutional Instrument of perpetual force and application in Pakistan.
580. ' Judgment of Salahuddin Ahmed, J.
581. ' With respect, I presume that on the subject of Objectives Resolution the observations made in the other judgments, as analysed above, were before his Lordship; therefore, there is no lengthy discussion on the various aspects of the Resolution. This judgment contains two passages which, to my mind, are most important in the context. They appear to me the conclusions on this subject and are reproduced below without any further comment of my own :- "The cornerstone of the State of Pakistan is that the sovereignty rests with Allah and Pakistan is His delegates in the matter of the Governance of the State. It is natural, therefore, that the delegatee on for the matter of that any ruler, single or collective, in Pakistan can never have unlimited power."
582. "This case (Dosso's) gives me the impression that law has been sacrificed on the alter of expediency. The entire legal system of Pakistan has been derailed as a result of this decision, and the system requires to be put back on the rail, if Pakistan is to pursue its chartered course as laid down in the Objectives Resolution passed by the people of Pakistan." *(Underlining is mine.)
583. ' The above analysis of, and in particular the quotations from, the judgment of the Supreme Court leaves absolutely no doubt in my mind that the objective resolution has been treated as a Supra- constitutional Instrument having validity and force as such. In this historic judgment of the Supreme Court, one finds two parallel lines of approach : one, criticism of the principles and theories underlying the judgment in Dosso's case with particular reference to the usurper's regime and its laws ; and two, the positive assertion of a new thought based on the ideology of Pakistan as epitomised in the Objectives Resolution. The latter is the real ratio decidendi. Their Lordships have decided and closed constitutional questions and controversies of great and far-reaching importance by placing repeated reliance on this supra-constitution of Pakistan.
584. ' The alternative suggestion by the learned Attorney-General, that this is also liable to change and amendment by the National Assembly, is unacceptable to me. I have said enough on the subject of limitations on so-called sovereign bodies and the basic principles governing the Constitution of the State. For more comment in the same line, one can, with advantage, refer to Grammar of Politics by Laski on theoretical side and for cases, to American Jurisprudence, Volume 16, 2nd Edition, para.
230. Not even a single Assembly (the present National Assembly included) bas claimed that it has the power to nullify any provision of the Objectives Resolution. On the contrary, as has been noted earlier, the provisions of the Objectives Resolution have been professed to have been adopted and enforced in the Constitutions of 1956, 1962 and 1972 (interim) and in the usurper's regimes of 1958 and 1969 ; and that it has never been, as put by Hamoodur Rahman, C. J , "abrogated". Moreover, as it would appear from the above analysis of the Supreme Court judgment in Asma Jilani's case, it is "immutable", "unalterable" and perpetual. It cannot be changed by any individual or collective body ; and the "Constitution" or for that matter any Constitution made by any succeeding Constitution, making body can only "regulate the constitutional principles" contained in it and "cannot abrcgate" the same. Above all, Sajjad Ahmad Jan, J., was pleased to observe that these 'basic norms' cannot be changed unless God forbid "the body politic of Pakistan is re-constituted on unIslamic pattern, which will, of course, mean total destruction of its original (Here in italics"! concept". So long as Pakistan lives, the past and present and future generations are irrevocably committed to it, as it contains the basic concepts and ideology of the State on and for which Pakistan was created. This is an existing supra-constitutional law and has been declared as such by the Supreme Court of Pakistan. The Courts in Pakistan being the repository of judicial power, as trustees of the people and the Almighty shall not, and have no jurisdiction to, accept any tinkering with it by anybody including any Assembly.
585. ' Law, as defined by the Supreme Court in Begum Shorish Kashmiri's case (1) as also in Asma Blanes case, includes also the principles laid down by the superior Courts. In Tanbir Ahmad Siddiky v.
586. Province of East Pakistan (2), it was held by Cornelius, C. J., that the decisions by the Supreme Court on Martial Law of 1958 had become essential part of that legal order. Hamoodur Rahman, C. J., also, while citing the above case, explained that the Courts continued to give effect to thus made legal order, because nobody challenged its basis. On the same analogy, the decision in Asma Jilani's case has more become a part of constitutional set up. I have already held that the Supreme Court has not only declared that the objectives resolution contains principles of Constitution of Pakistan but has also applied it as such in that case. Therefore, in this context also, the objectives resolution has been and is an important part of constitutional law of Pakistan. It is perpetual and is of supra- constitutional force. No Constitution or law can be made against its mandates.
587. ' One of its operative mandates is that 'the State of Pakistan "shall" exercise its powers and authority through the chosen representatives of the people'. The National Assembly of Pakistan has no power to make any Constitution or law contrary to the above mandate so as to provide that the State of Pakistan shall exercise its powers and authority through a single person, say a military commander or any other autocrat. In other words, it cannot make any provision; constitutional or otherwise, to provide (and this is important) prospectively that the State of Pakistan shall be ruled by a single man (an autocrat) for a length of time or perpetually. This, of course, is subject to, as observed by Yaqub Ali, J., in Asma Jilani's case, the exception of the Executive Head even in a democratic system, exercising legislative powers by way of promulgating Ordinances for limited duration, when the Assembly is not in session. The argument of the learned Attorney-General noticed by me in the beginning of this discussion on the constitutional position of the objectives resolution, that the National Assembly of Pakistan, particularly if it is exercising constitution-making powers, can do such an extraordinary thing, is not acceptable and is, therefore, repelled.
588. ' Before closing this part of the judgment, I consider it necessary to note that as Sajjad Ahmad Jan, J., observed in the opening part of his judgment in Asma Jilani's case, these cases have raised 'delicate constitutional and legal questions' which are 'seemingly tied up with political concomitants', it will not be out of place to repeat the advice in the concluding judgment of Salahuddin Ahmed, J., that if the Executive, Legislature and the Judiciary all the three main organs of the State of Pakistan, want to put the legal system of Pakistan "back on the rail", the State of Pakistan shall have "to pursue its chartered course as laid down in the Objectives Resolution which was passed by the people of Pakistan."
(1) PLD 1969 SC 14 (2) PLD 1968 SC 185 Questions Nos. III and IV: ' The effect of the constitutional position of the Objectives Resolution as explained above on the powers of the National Assembly while enacting a Constitution and other laws has direct bearing on, and relevance to, a major controversy involved in this case. It relates to the position of Article 281 of the interim Constitution in the Scheme thereof. According to its interpretation by the learned counsel from the side of State, it has, in sub-Article (1), legitimised the Martial Law regime in Pakistan for about three years by objectively validating all its legislative and judicial acts, whether in the form of Proclamations, Orders, Regulations or in the form of other laws, as not only having been validly made but also by competent authority. A constitutional question arises : Whether, thus interpreted, this National Assembly has any power to make the above provision having retrospective effect, which it could not have made prospectively because of certain limitations on its powers ? The answer has to be in the negative, on the basis of the Objectives Resolution, the Supreme Court judgment in Asma Jilani's case as also on general constitutional principles. I need not discuss the provisions contained in, implications arising from, and intentions of the framers of, the Objectives Resolution over again. In the light of the entire discussion in answer to Question No, II above, I am of the view that the National Assembly has no such power because any exercise thereof will generally be ultra vires the first part of the Resolution and in particular the first clause thereof which is mandatory that 'the State shall exercise its power through chosen representatives of the people'. Any contravention thereof, whether prospective or retrospective, will be ultra vires and void.
589. ' As already discussed, Asma Jilani's case has become an essential part of constitutional system of Pakistan. Any provision having the effect of nullifying the basic constitutional concepts of Pakistan so declared by the Supreme Court, shall be a nullity and of no legal effect. The declaration of the Supreme Court being in exercise of the judicial power and also of permanent character, as it relates of the unalterable constitutional principles, cannot be nullified by the introduction of any non obstante clause because that will amount to a futile exercise of moving in circle. Moreover, it will amount to usurpation of judicial power and (this is of high importance) it might be considered as an attempt at introducing Oligarchy in Pakistan. In view of the decision by the Supreme Court in Asma Jilani's case on the subjects of the sovereignty of Allah, the trust thereunder and in particular indestructible nature of judicial power derivable from that trust, oligarchy also is not permissible in Pakistan ; because it has all the disadvantages of a dictatorial rule. (See Jennings p. 86).
590. ' The third reason why the National Assembly cannot make such a pro is retrospectively is based on a general mixes principle of Constitution and interpretation ; namely, abdication of, or, in any case, excessive delegation by the legislature in favour of an executive head and in our case a usurper.
591. Courts being the repository of judicial power, in exercise of their well-recognized constitutional jurisdiction of laying down the limits of and enforce balance between, each organ of the State in a Federal system, will strike down any such abdication and/or delegation. The principle underlying the prohibition is that any imbalance in the Federal set-up on the question of principles of federalism can endanger the very existence of such a State. The further underlying philosophy, being that all these organs in a Federation are, no doubt, independent, but are coordinate and co- equal Any abdication; usurpation or excessive delegation by one to the other will bring in unnecessary subordination which is negation of federalism. In this context, it is necessary to remark that if the Courts are competent to strike down voluntary abdication and excessive delegation, they can certainly do so if it is under any kind of duress. The proposition of constitutional law, that what a Legislative Assembly cannot permit or sanction in advance it cannot do the same ex post facto in the form of validation, is given in "Cooley's Constitutional Limitations" 8th Edition, Volume I, p. 206 notes 1 and 2 p. 207 and Volume II, p. 791 note 1, p. 792 notes 1 and 2. To the same effect is the statement of law in American Jurisprudence, Volume 16, 2nd Edition, paras. 179-180 therein the question of such validation by amendment of Constitution has also been noted With the remarks in para. 180 that an unconstitutional statute has been held not validated by a subsequent constitutional amendment which does not ratify and also confirm the statute but merely authorises the enactment of such statute, and it has been remarked that a law originally invalid as in contravention of prohibitions contained in the Constitution is not made valid by the repeal of such constitutional limitations. Paras. 426 to 431 are also important. It is observed as a conclusion that "on the other hand there is considerable authority to the effect that such a statute is wholly void and is not validated by a subsequent amendment of the Constitution conferring authority upon the legislature to enact such a law". A similar question arose before a Full Bench of this Court in the case of conviction and sentence to death of Abdus Sattar Khan Niazi during the Lahore Martial Law in 1953, namely, Muhammad Umar Khan v. Crown (1). It is interesting to note that main question involved was the same. The statement of constitutional law was clearly stated in unequivocal terms that "there can be no doubt about the proposition that the legislature cannot validate acts of military officers which it could not constitutionally have authorised by prior legislation". But on consideration of the law then applicable and on a view framed about the presumed intentions of the legislature with which, with profoundest respect I do not agree, it was held that this rule of constitutional law and the bar against excessive delegation were not flouted by ex post facto validation because through a course of involved reasoning the legislature was deemed to have known with retrospective effect what was going to happen during the Martial Law period. No such contention can be raised in this case. The present situation is entirely different.
592. What Yahya Khan did after the imposition of Martial Law could not have even been imagined as being permissible by a legislature of that time or, for that matter, even the present National Assembly. Nor, in fact, the conduct of the National Assembly appears to have objectively accepted that whatsover Yahya Khan did was either permissible under the constitutional law or that it was necessary for the country or that if it would have had an occasion to authorise it, it would have done the same by legislation. Moreover, the indemnity and so-called validation in Article 281 does not lay down any principles and policy so as to assume that if the same law would have been enacted prospectively at the time of promulgation of Martial Law, it would not have amounted to excessive delegation. Therefore, obviously it conflicts with the doctrine against delegated legislation. Looked at from whatever angle, that decision is distinguishable from the present case.
593. The same matter was taken to the then Federal Court of Pakistan. - The decision is reported as Abdus Sattar Khan Niazi v. The Crown (2). The same argument, namely, that "by the Martial Law
(1) PLD 1953 Lab. 528 (2) PLD 1954 FC 187 (Indemnity) Act, 1953, the Federal Legislature of Pakistan was, in effect, ratifying its own abdication of its legislative functions" was raised. But the argument was not accepted mainly on the consideration of the constitutional position then available in the country and it was held that it was open to the legislature in dealing with the bill to take such action as it thought fit, in relation to the Executive authorities which were responsible. Such action need not have involved any act of legislation and consequently no question of abdication of legislative functions was involved in that aspect of the matter. With regard to the question of abdication it was held that, in fact, the ratification by the Indemnity Act did not involve the legislative functions of the Federal legislature.
594. In the reasoning appearing subsequent to this observation, one gets an absolutely clear impression that the conclusions' followed on the assumption that the ldgislative measure in question (Indemnity Act of 1953) was essentially a measure of indemnification and not objective legitimisation and validation of legislative measures or other acts by the Martial Law regime. The following remark at page 196 of the report supports my assumption : - "It is inconceivable that the Legislature, while on the one hand it did not disapprove, and consequently by implication ratified, the carrying on of the administration by such self-appointed authorities, during the material period, should at the same time have felt all those no participated in the task of administration in the period, open to suit or prosecution by person against whom they had felt it their duty to take action, to which suit or prosecution no defence could be offered.
595. ' Provisions similar to those in the Martial Law (Indemnity) Act, granting immunity to persons acting in the discharge of public duties, are obviously wholly within the competence of the Federal Legislature, and this, irrespective of whether or not such persons were duly constituted in authority or otherwise."
596. ' Thus, the so-called objective legitimisation of the laws and validation and continuance of the actions of the Martial Law authorities as in the present case was not the basis of the decision by the Federal Court. A question, however, can be raised as to why then the continuance of sentence of Abdus Sattar Khan Niazi was treated as valid. The obvious answer is that there was a specific provision in the Indemnity Law of 1953, namely (section 7 of the Ordinance),- "Every person confined under and by virtue of a sentence passed by a Court ---under Martial Law shall continue liable to confinement until the sentence,---is served---."
597. ' The above supposition about the Federal Court judgment finds ample support in so far as the question of validation is concerned, from the later, ruling in the case of Usif Patel (1) that : "a Legislature cannot validate an invalid law if it does not possess the power to legislate on the subject to which the invalid law relates, the principle governing validation being that validation being itself legislation you cannot validate what you cannot legislate upon". Apart from the constitutional principles accepted in the first two judgments in the case of Abdus Sattar Niazi, namely, bar against abdication and excessive delegation .And ex post facto validation of void measures which could not be permitted in advance, other questions arising out of the then prevailing statute law and the circumstances
(1) PLD 1955 FC 387 of the Martial Law which was confined only to a locality, make them distinguishable from the present case and, therefore, have no binding force. Moreover, since 1953 as earlier noted by me, there has been marked evolution in the constitutional law of Pakistan and the same has been finally declared by the Supreme Court in Asma Jitani's case wherein rules and principles of far- reaching implications and force have been laid down. And if 1 may say so with respect, if despite the ahovenoted distinction including that of continuance of sentence that case would have been brought before the Courts today and laid down in Asma Jilani's case was to be applied, the results would perhaps be totally different. Same considerations would apply to the other distinguishable cases cited from the side of the State. They arose out of and after the Martial Law of 1958. The additional distinguishing feature with regard to those cases is that the then Martial Law regime by virtue of the judgment in Dosso's case was, prior to coming into force the Constitution and indemnity laws, treated as lawful. This made all the difference in so far as the interpretation and implications of certain provisions relating to bar of jurisdiction of Courts and validation and indemnification were. Concerned. In Asma Jilani's case, the constitutional position vis-a-vis Martial Law regime has been reversed. This decision was given prior to the lifting of the Martial Law and, as discussed earlier, had become a part of the law before .21st April, 1972 when the interim Constitution came into force. Therefore, those cases are also inapplicable to the present situation.
598. In the light of the discussion on the issues involved in questions Nos. III and IV, I hold that the National Assembly of Pakistan cannot abdicate any part of the State power in favour of an autocrat for perpetuation of one man's rule ; such an abdication is not permissible even by ex post facto legislation whether as a constitutional or ordinary legislative measure ; and further that if the technical interpretation of Article 281 put forward by the learned counsel from the side of the State is accepted, the provision would then be deemed to have contravened the above constitutional limitation and would be liable to be declared as void and a nullity.
599. Question No, V : ' In the light of the discussion on preceding questions and what I have to say in answer to the questions (No, VI) relating to the jurisdiction of the superior Courts, it is within their competency to strike down any legislative measure which is against the above declared constitutional law. It is one of the cordinal principles of interpretation that the Courts should make every effort to find out if there is any interpretation consistent with the other provisions of the statute involved and the Constitution. If all such possibilities are excluded only then the provision can be struck down as unconstitutional. In this case, after utmost consideration of all the relevant material, I have come to the conclusion that it is not necessary to strike down Article 281 of the interim Constitution as there is another more reasonable interpretation which is consistent with the above declared constitutional position and other provisions of the interim Constitution so as to understand it as an organic whole and that interpretation, in my view, is also in accord with the intention of the National Assembly. Before discussing this aspect of the matter, is also necessary to state another principle of interpretation which has almost been a rule in Pakistan, namely, that progressive interpretation as opposed to literal or grammatical (and as described by some other authorities, pragmatic as opposed to technical) should be preferred for interpretation of constitutional instruments. Mr. A. K.
600. Brohi, in his book on 'Fundamental Law of Pakistan' has made similar distinction by making reference to the approach of the Supreme. Court of United States in interpreting the Constitution and of the Privy Council in the construction of Colonial and Dominion Constitution Acts. The former is progressive while the latter is literal or grammatical interpretation. Our Courts in this behalf (in resolving constitutional controversies) have not followed the technical rule as opposed to the superior Courts in a neighbouring country which till at least 1967, followed the literal rule. I, therefore, would proceed on the assumption that a Constitution should be construed 'n such a manner as to treat it as progressive and not static and further that it has to be construed so as not only to ascertain but also to give effect to the intent and purpose of the "framers thereof and the people who adopted/ accepted it". Keeping in view the above principles, it is not necessary that the literal interpretation of Article 281 canvassed from the side of the State should be treated as representing the intention of the framers of the interim Constitution. For example, to put it in a more direct manner, if it was to be put to the members of the National Assembly or, for that matter, to borrow the expression used by Mr. Brohi "the people who adopted/accepted it", whether they intended objectively to legitimise and condone all acts of the usurper, they would answer in the negative and, in addition, might protest against this assumption. Sufficient comment has been made in the majority order of this Court in the Journalists' ca,e and the Supreme Court judgment in Asma Jilani's case as also in, this judgment in answer to an earlier question, to indicate that neither the people nor their representatives nor the present Executive and Judiciary have accepted the theory that the people accepted the Martial Law regime and its measures and acts as legitimate and valid. No more comment is necessary on this aspect of the matter.- With respect, 1 do not agree with the technical interpretation advanced from the side of the State. I, therefore, proceed to interpret Article 281 with a view to find out the intention of the National Assembly and the true purport. As would appear from the numerous reasons that follow, the intention was merely to indemnify innocent functionaries of State. It was definitely not to legitimise all the measures of Martial Law regime or to validate all actions against all persons including innocent ones. It essentially is a legislation of indemnification and not of legitimisation of void laws and validation of illegal and/or unjust acts. It was never intended that while giving protection to innocent functionaries of State, actions under the Martial Law regime, even if resulting in continuance of injustice to individual citizens, must be continued.
601. There can be no dispute about the fact that whatever has been provided in Article 281 could, instead of including the same in the Constitution, have been enacted as an ordinary Act. Examples of many Indemnity Acts passed in pre-partition India, in Pakistan (arid in England, particularly those before 1920) can be cited where the laws were made for indemnification of State functionaries. As to whether there was a possibility of an ordinary measure being included in the interim Constitution, there was no legal bar. On the contrary, there was factual need for doing so.
602. After the lifting of the Martial Law, the question would have necessarily arisen for the protection of State functionaries. It could have been resolved by an Indemnity Act. Presumably, on account' of State necessity, the President could riot extend the short Session of the National Assembly to transact ordinary business of legislation. And as the legitimacy of the entire Martial Law regime had already been questioned before the superior Courts, he might have considered it proper not to provide the protection by an Ordinance. It was, therefore, thought necessary that this piece of ordinary statute law might be included in the interim Constitution and was thus put in the Miscellaneous Chapter thereof. The proposition that a provision of ordinary statute may be found in a Constitution has been settled in the judgment of the Supreme Court in the case of Abdul Aziz v.
603. Province of West Pakistan (1). Their Lordships treated a provision in the Constitution relating to a fundamental right as "belonging to the category of statute law, albeit enacted in the Constitution".
604. The relevant provision (Article 7) was not treated as of "organic nature" and it was held to have enacted ordinary law in pursuance of another Article in the same Constitution (i,e,, Article 5)-"no person shall be deprived of liberty save in accordance with law". Thus, Article 5 was treated as a constitutional provision while Article 7 was dealt with and applied as ordinary statute law. The principle of interpretation of pith and substance was applied to this provision in order to understand its true import and application ; even though it was observed that this principle "is familiarly applied to the examination of statutes in point of their competency, i,e,, in a Federal Constitution, for the purpose of determining whether a statute relates to one subject or to another subject. It is unusual to employ this expression when construing the scope and content of a constitutional provision, but as will presently be seen, the clause hereunder examination possesses such a character as makes the application of this expression to it both possible as well as apt". It is not necessary to examine in detail an earlier somewhat contrary view in the case of Malik Khizar Hayat Khan Tiwana (2) firstly because the facts and circumstances of that case are distinguishable and secondly, it will be presumed to have been modified in the later view.
605. ' The learned Advocate-General, in addition to his argument based on the bare language of Article 281, tried to support the same by an argument based on so-called assumed intention of the legislature. According to him, even though the Supreme Court judgment in Asma Jilani's ca e was announced on 21st April, 1972, the Legislature had made certain assumption about this reserved judgment by some means (which have neither been disclosed nor spelled out) and because they wanted to, as the learned Advocate General put it "do away with the effect" of that judgment, therefore the Assembly intended the legitimization of Yahya Khan's regime. With profoundest respect to the Supreme Court and its procedures, I refuse to accept the assumption by the Advocate-General as correct. Nor do I subscribe to his view. The members of our National Assembly are not so naive and uninitiated in constitutional and parliamentary principles and procedures that they would not only have tried to prejudge and imagine a Supreme Court decision but would also have attempted by an anticipatory sweep to nullify the effect of the judgment of the Highest Court in the realm And if I may also add, for what purpose- as would the learned Advocate-General have us believe to legitimise the usurpation by the Martial Law regime, its measures and acts, as if they liked them. It is beyond my comprehension and my faith in the people of Pakistan and their representatives., I, therefore, repel the argument and suggestion of the learned Advocate-General. Lest a similar argument is raised qua
(1) PLD 1958 SC 499 (2) PLD 1956 FC 200 the order of this Court in Journalists' case on 17th April, which contained at least on some points, similar pronouncement of law as was subsequently declared by the Supreme Court, 1 want to make the position clear. The arguments were concluded by mid-day of 17th April. Although the order was announced but dictation of the reasons (given by me) including those relating to the subjects, which are under discussion in this case, was completed by late afternoon that day. They were not typed till the next day and I am more than certain about my staff that nobody could have an access to the order dictated by me. The material facts in this connection are also borne out from office report, dated 25-4-1972 on page 145 of Writ Petition No, 403 of 1972. The interim Constitution was discussed in the National Assembly on the 17th April and the Resolution was passed in the afternoon the same day. The draft of Article 281 and the introduction of the non obstante clause in it must have been prepared before 17th April. Therefore, on the basis of the order of the High Court as well, the contention of the learned Advocate-General remains untenable. It is common knowledge that many actions by Martial Law authorities had been brought under challenge during the Martial Law period. Quite a number of proceedings had fructified-some on merits and others on technical grounds or on concession by State/Martial Law authorities. One such instance the learned Advocate-General himself quoted. One is mentioned in the earlier order in Journalists' case. Yet another is the case of Amir Hussain. Despite the purported attempt to illegally bar the jurisdiction of the Courts, proceedings continued to be instituted but in reduced numbers. Instances can be cited where contempt proceedings were initiated against defaulting officials including those belonging to Armed Forces. In one very well-known case, high military personage was convicted. Some contempt proceedings might still be pending. In Mir Hassan's case as well notice for contempt was issued. In this background the Legislature might have thought that, notwithstanding decisions by Courts, in individual cases, the State functionaries involved therein would need protection. And as would be explained later it was thought necessary to give deeming legitimisation to measures and acts of Martial Law period, so as to completely indemnify the innocent functionaries. The supposition finds support from the line of reasoning by the Federal Court in Abdus Sattar Khan Niazi's case and also the language used in some other Articles of the interim Constitution. It is significant to note that word "Court" has been used twice in sub-Article 281 ; one with capital 'C' and the other with small 'c'. This is different from the language in Articles 206, 216, 261(7) and 285(5) In view of what I have said above, the argument of the learned Advocate-General that the National Assembly wanted to forestall the decision of the Supreme Court in Asma Jilani's case appears to be fallacious.
606. ' The learned Attorney-General, however; on the other hand while trying to spell out some intention which could support the purely technical interpretation advanced by him, contended that innumerable acts had been done in pursuance and under the cover of Martial Law many of which were of the State necessity : for example, those relating to financial and administrative measures.
607. Moreover, many properties had been confiscated and many citizens had been sentenced by Military Courts (including the sentences of death). Therefore, according to him, in order to prevent the institution of innumerable proceedings against State and State functionaries, the National Assembly validated all those measures and acts. If this were the only purpose, then there was no need of continuing illegal sentences even after the Martial Law. (This proposition I do not accept, but according to the learned counsel they have been continued). Nor was there any justification, for the above purpose namely, to prevent institution of proceedings, to objectively validate all the measures and actions including many which might not only be bad in law and unjustified in fact but also against equity and justice. It is not necessary to cite any examples because this factual position is not denied. On the above argument of the learned Attorney-General, the execution today of the sentence of death against a citizen, even if he is admittedly innocent, would not also be lawful but also a valid act. I am unable to accept this argument. Otherwise too, the argument does not pass the test of proper analysis and scrutiny. It would not at all be wrong if Courts are moved by aggrieved persons in so far as the infringement of their rights is concerned. Even if the proceedings are innumerable, that would not make any difference because according to the existing constitutional and legal position relief can be granted to such persons. However, I do not think there would be many proceedings because most of the transactions are past and closed.
608. Moreover, the period of about three years under the Martial Law regime will have to be taken into account when comparing the. Number of institutions. Thus, even on ground of this so-called necessity, the argument is untenable.
609. ' There is yet another aspect of the matter and it has been brought to light during the argument of the learned Advocate-General. He was asked a specific question whether all measures and acts under the cover of Martial Law regime have been and are being treated as sacrosanct by the Legislative and the Executive authorities in Pakistan on account of the reason that they had been legitimised and validated in the Constitution and whether the Legislature and the Executive have no power to correct the wrongs done under the Martial Law regime. His answer was that despite his interpretation of Article 281 of the interim Constitution, the Executive and the Legislature could correct the wrongs. This goes against his basic argument. If all measures and actions have been objectively legitimised and validated in and by virtue of the Constitution, the Legislature and the Executive would be unable to alter or correct the situation. With regard to the Judiciary also, he indirectly made similar admission in bringing to our notice a case where he stated that in a pending petition in the High Court, where a Military Authority had passed an order in a matter which manifestly was of civil nature, he by making a statement in the High Court had conceded the demand of relief by the aggrieved party. Thus, the sanctity of constitutional legitimisation and validation of measures and actions under Martial Law cover has, according to the admission of the Advocate-General himself, not been accepted by any of the organs of the State in the post- promulgation (interim Constitution) period. I would not entirely rely on the admission of the Advocate-General in support of my view. There are specific instances from which it can be clearly spelt out that the admission made by him is otherwise fully justified. Many provisions of the interim Constitution show that the makers thereof never intended that all the measures and actions under the Martial Law cover had been affirmed and continued as lawful and proper by virtue of Article
281. Specific provisions were made for continuance or otherwise of certain measures. See Articles 139(8). 269, 280(1), (2), (3) and (8), 282, 28?, 284, 285, 286 (4) and (6), 288 and 295. Next the example can be cited of the Central Legislature having enacted in May, 1972, the Transfer of Evacuee Land (Katchi Abadi) Ordinance wherein the actions already taken under a Martial Law Order were, by a specific provision, (section 11) validated and continued. In other words the provision contained in sub-Articles (1) and (2) of Article 281 of the Interim Constitution was not considered as applicable for the purpose of objective validation and continuance of the measure and/or action. The Executive, it is well-known, is passing innumerable orders correcting the wrongs done under the Martial Law cover in the administrative field. It was an objective legitimisation and validation by Article 281, how could the Executive, by way of its ordinary powers of correction derived presumably from the provisions of General Clauses Act, go against the so-called validation and continuance provided in the constitutional validation namely, Article 281 (2), as contended by the learned counsel from the side of the State.
610. ' Next, the learned Attorney-General contended that some measures and actions under the Martial Law cover were for the benefit of the people and without legitimisation and validation they would remain or become void in view of the decision in Asma Jilani's case. He, in this connection, also canvassed the proposition, though without cogent supporting argument, that the rule of Martial Law between December, 1971 and April, 1972 under the present regime with sources in democratic processes, is distinguishable from the preceding period. While discussing the question of State necessity, I made the following remark in the order, dated 17-4-1972 in the Journa'ists' case :- "It is necessary to make a brief reference here to the Reforms introduced through Martial Law Regulations-whether they can be upheld on the principle of State necessity. Subject to further arguments on this question, a tentative opinion, at least, can be expressed at this stage that it might be possible to construe some of those Reforms as being in obedience to the mandates contained in the supra-constitutional Instrument, namely, the Objectives Resolution. For example, the mandate of 'social justice', of course as enunciated by Islam, can cover many of those Reforms.
611. If that is so, they can be upheld not only on the basis of State necessity and implied mandate but also on the basis of the mandate contained in the Objectives Resolution."
612. ' This view is, in no way, contrary to the judgment in Asma Jilani's case wherein condonation on the basis of "establishment of, in our case, the objectives mentioned in the Objectives Resolution"
613. (Hamoodur Rahman, C. J.) was held to be possible. One of such objectives relied upon by me in the earlier order is democracy, freedom, equality, tolerance and social justice as enunciated by Islam.
614. It can be legitimately claimed on behalf of the Government that many of those measures during December, 1971-April, 1972) conform to this objective. However, the other tests laid down by the learned Chief Justice for condonation : past and closed acts ; the re-opening of which will not serve any useful purpose ; measures which could be taken under 1962 Constitutions or earlier legal order ; advancement and promotion of good of the people; and ordinary orderly running of the State, I presume, will cover innumerable instances about which the learned Attorney-General has expressed fears. On procedural aspects as well, there should be no chance for any complication or disaster for the country. The Courts have accepted the principle of State necessity and as said in the earlier order of this Court, "it is in performance of their own obligations that the Courts have started examining the actions of the usurper brought before them in proper proceedings in each case whether it was in aid of good government or was to perpetuate the usurper. The former can be condoned but the latter will have to be struck down". After flaying down the general constitutional position, it has been firmly declared by the Supreme Court that there is no scope for suo mow proceeding or relief. Each case, only when brought before the Courts in legal and proper proceedings, will be judged on its own merits qua tne question of State necessity, in accordance with the tests already laid down. There is no element of uncertainty either. There need not 'be any apprehension on account of possibility of indiscriminate judicial interference because Courts are bound to act in accordance with law and justice and the specified hierarchy in our judicial system is sufficient guarantee against error. This should set at rest fears, if any, in so far as the judiciary is concerned. Regarding the Legislature and the Executive, it has been noted above that process of condonation and correction having already set in, might be nearing completion. I have purposely included condonation also qua Legislature because some Martial Law measures have not only been condoned but also continued in Article 280 of the interim Constitution, obviously on the assumption that they are necessary for the country. It is clarified that this action on the part of the Legislature in specified fields, if not in contravention of the tests laid down by the Supreme Court, might not be unconstitutional due to State necessity assumed in each case ; but wholesale legitimization of the unconstitutional Martial Law regime, its measures and actions taken thereunder without any distinction is clearly distinguishable as being against the very basis of our State and thus interpretation of Article281 of the interim Constitution, as contended on behalf of the State, despite the observations, remains unacceptable.
615. ' As to the effect of the acceptance of the legitimacy of the present regime in Martial Law period between December, 1971-April, 1972, lest there be any doubts, about the ,implication I want to make the position clear. [his regime assumed power as representative government and not successor to Martial Law regime. Yahya Khan could not give any power or confer legitimacy. Therefore, there is marked difference between assumption of office as President and so-called receiving of power as Chief Martial Law Administrator. The source of former office is democratic and legitimate, the latter's credentials unconstitutional and illegitimate. The former office owed accountability to chosen representatives of people-the latter to none. The former was bound by Constitution and legal procedures and practices of Government-the latter was autocratic in philosophy and execution. That is why actions were Taken under both offices with the assumption that under the former, they were challengeable but for the latter immunity was claimed from any challenge whatever. Therefore, on the basis of the ratio decidendi in Asma Mani's case the latter office (Martial Law) and measures thereunder were, subject only to question of necessity, illegitimate, unconstitutional and void. The former office (Presidency) was legitimate and valid and the measures taken thereunder could be tested on the basis of 1962 Constitution in so far as it was practicable, and other laws and rules. This distinction, it is important to note, for obvious reasons can be made only qua the period December 1971-April, 1972. It does not at all enure for the benefit of Yahya Khan's regime. While coming to the, above cone elusions I have not been unmindful of the recognition of change by the Supreme Court as also by this Court in its order, dated 17.4-1972, in the position after 20th December, 1971 and also after the session of the National Assembly. But, with respect, this appreciation of change when applied with precision to the constitutional questions arising in this case, means what has been stated above and nothing more. I am unable to accept the suggestion of the Attorney-General that some sort of immunity will he available for actions taken after 20th December, 1971 under the cover of Martial Law. It is neither sound on constitutional basis nor on the hypothesis that it was necessary to continue the Martial Law. Had it been so, the Supreme Court would not have granted the relief in the two matters of detention of Malik Ghulam Jilani and Mr. Altaf Gauhar.
616. ' In order to determine the true scope of Article 281, there are some more points for consideration.
617. All Martial Law measures, under the conditions laid down by the Supreme Court, are to be treated as unconstitutional and void. Such void measures cannot be legitimised without reenactment (American Jurisprudence, 2nd Edition, Volume 16, paras. 179, 180, 431 and also paras. 426-434).
618. There is some re-enactment in Article 280 while Article 281 does not even purport to be a re- enactment of any measure. Otherwise too. Validation of what is void is not permissible, as nullity cannot be brought into existence by mere validation. Something more by way of revival would be necessary. Therefore, there is no validation in Article 281 except, as would be presently discussed, for the limited purpose of sub-Article (3) thereof, i. e., indemnification. Added to the above is the reality that this Court on 17th April, and the Supreme Court on 20th April, held the view that all Martial Law measures and actions were void. The Constitution came into force on 21st April. There could not be a revival by mere validation of an extinct measure or action on the 21st. The repeal in this context in Article 280 will not make any difference because a non-existent measure could not, in law, be repealed. For this reason also, there could be no validation without re-enactment. As a corollary of the above points, it will have to be presumed that the convictions under Martial Law could not be continued on ground of necessity because they were nullity on 20th. If by a validation clause they are continued after extinction, this would, in law, amount to conviction by Bill of Attainder which is always illegal and unconstitutional on the principle of bar against usurpation of judicial power. It would amount to ex post facto legislation of penal consequences because there is no doubt about the proposition that according to law declared by the Supreme Court, the convictions were void ab initio from every angle including nature of offences, at all relevant times.
619. Admittedly, if these cases had been decided on or before 20th April, 1972, the detenus would have been released. Moreover, it is nothing but review of judgments of the superior Courts by Legislature.
620. For useful discussion on the above principles, see Grammar of Politics by Laski, p. 304 ; Sharifuddin Pirzada on Fundamental Rights and Constitutional Remedies in Pakistan, 1966 Edition, Chap. XX ; and Cooley's Constitutional Limitationi, . 190 to 192 and 205 to 207.
621. ' Some provisions of the interim Constitution have already been referred to, in order to show that they indicate the intention of the National Assembly, namely, that Article 281 was not, meant to legitimise, save and validate all Martial Law measures and actions for all purposes except, of course, indemnity. Comparison of Article 281 with some more provisions would further spot-light the intention of the Legislature. In Article 54, it is specifically provided as a note of warning that nothing therein shall "be deemed to transfer to the President any functions conferred by any existing law on any Court, Judge ." This is prohibition against exercise of judicial power by the President. Similarly, the President is not permitted to exercise legislative power except for a limited period and purpose under direct control of the Legislature as provided in Article 94. This is the treatment of the powers of an elected President in the interim Constitution. Can it be imagined that the framers thereof would have intended to confirm and adopt retrospectively as legitimate in Article 281, the usurpation of all State power -executive, legislative and judicial-by a usurper who had no legitimate source of authority ? Answer must be in the negative. Thus, the only purpose of validation in Article 281 could be indemnification of innocent functionaries of the State.
622. ' Another provision in the interim Constitution makes a still more interesting and important comparison. Article 278 permits the making of an indemnity law after a Martial Law. This provision does not relate to the Martial Law of 1969 as it is confined only to one type of Martial Law, namely, (0 for maintenance or restoration of order ; (ii) in any area of Pakistan. It does not apply to a Martial Law which controlled the entire State and political power and was imposed in the entire country. In other word's, in future use of military except for its normal duty of defence and security of the State, can be made only locally and for maintenance of order. The name Martial Law could very easily be avoided. Provisions in French Constitution and also in Pakistan Criminal Procedure Code and Police Act dealing with the subject of rebellion and roits can be of some help. Sims guidelines can also be found in the Bengal Regulation No, 10 of 18u4 and Martial Law Instructions issued in April 1942 (G. H.
623. Q. B/57865)AG/8 by A. G's Branch from Simla. The French avoided the use of the expression. "Martial Law". Here in Pakistan, it carries so many questionable meanings and sad memories that it is highly desirable that some other expression like "State of Riot" and/or "Rebellion" conveying the true sense be used. And the conditions for the declaration of such a State or Emergency and its stages qua intensity and measure of use of force be specified with 'precision. It is too risky to leave the matter to the sweet-will and good intentions of individuals. In the context of the development of this branch of law in Pakistan, any provision authorising or indemnifying acts under such law, without laying down details of principles and policy, will be liable to be hit down on various grounds including that of excessive delegation. If the National Assembly by enacting Article 278 has laid down the aforementioned two stringent conditions for use of armed forces, so to bar and/or qualify subsequent indemnity, can it be imagined that in the same Chapter in a later Article 281, the same Assembly intended to legitimise in a blanket manner the entire usurpation of all power by a Military Commander not only for purpose of indemnity but also affecting the rights of innocent citizens ?
624. Obviously not.
625. ' Some measures of Martial Law period have been re-enacted by adoption in Article 280. They contain all the Reform Regulations. I will, for the present point, only assume the basis of State necessity on tests like those laid down by the Supreme Court by 17th/21st April, actions had hardly been completed under many of them. Most of the actions are continuing and can be enforced and continued under the relevant General Clauses Acts. Those actions have not been accorded any supra-sanctity so as to make them constitutionally valid and immune from scrutiny by Courts-as the measures are, under Article 280, to be treated as Central and Provincial laws. It cannot in this context be assumed that as opposed to these adopted, presumed to be good laws and actions all other actions under the rejected and repealed Martial Laws were meant to be immune from any interference and stood constitutionally validated for all purposes in Article 281. Obviously, the latter validation is for limited purpose of indemnity. The framers could not have even thought of a conflict with their own intention underlying Article 280 or to override the verdict of the superior Courts qua the rights of innocent citizens. (Reference in this can be made to the subject of `repugnant saving clauses' dealt in Craies on Statute Law, page 203-204 and Maxwell on interpretation of Statutes page 154-155.
626. ' The foregoing point can also be brought out by another comparison of more direct implication.
627. Some measures of Martial Law. Period have been continued and others have been repealed.
628. Actions under continued laws are to be taken care of qua their continuance by the procedures and provisions contained therein and subject to decisions thereupon by the Courts. The continuance, etc. Of actions under the repealed laws is specifically provided in Article 295. If continuance, etc. Of actions under both the continued and repealed measures has been taken care under Articles 280 and 295, respectively, was it necessary to provide continuance, etc. Twice over in Article 281 also and that too for all times and all purposes. Legislature cannot be attributed redundancy. The purpose, therefore, in enacting Article 281 was only which had not been provided for in the other two Articles 280 and 295, namely the indemnity to innocent functionaries.
629. ' Article 295 can be compared with Article 281 in another respect also. The former is a saving provision. If Article 281 also contains saving provision of the type as contended by the learned State counsel, then in respect of repealed measures of Martial Law period there would be two saving provisions. If the language of both is compared, one finds marked differences of phraseology employed. To take only one, the phrase "purported to have been done" in Article 281(2) is missing in Article 295. Instead the expression used therein is "duly done". If both Articles are applied to question of continuance of action under a repealed Martial Law measure as is the position in this case, the result would involve absurdities. This duplicity and absurdity could not have been intended by the Legislature. Therefore, Article 281 provides only limited validation for purpose of indemnity.
630. ' There is conspicuous omission of continuances, etc., in sub-Article (2) of Article 281. 1 have already referred to indemnity Ordinance of 1 53, wherein continuance was specifically provided. If one were to presume that the framers of Article 281 knew the language used in the predecessor law of 1953, the omission of continuance of sentences is intentional. Otherwise too, as a general principle sentences of confinement automatically expire on lifting of Martial Law unless continued in a specific case or class of cases by clear provisions as were noticed in Tilonko v. Attorney-General of Natal (1) and Muhammad Umar Khan v. The Crown (2) There is no general presumption that an indemnity law will despite absence of clear language for continuance of confinements, by mere implication continue them. The omission, therefore, in Article 281 of clear language of continuance obviously shows that the purpose in enacting Article 281 was only indemnity for innocent functionaries of the State and not the continuance of illegal sentences, etc., under illegitimate laws.
631. It needs hardly any elaboration that if there were any doubt about the intention, which as demonstrated above is none, then the principle of interpretation of punitive laws (continuance and action thereunder included) is that the intention which supports the subject in his liberty is to be invariably inferred.
(1) (1907) A C 93 (2) PLD 1953 Lah. 528 ' I will conclude the discussion on the question of intention by making reference to a well-known principle. Supposing there was a real possibility of two intentions, one of indemnity only and the other of indemnity and saving both. Then unless the saving (can also be called validation or heating) is possible without re-enactment, the only intention that can be attributed to the Legislature is that of indemnity. In this case, the laws under which the detenus have been sentenced were admittedly void before the so-called validation. They have not been continued nor re-enacted, nor was it the intention of the Legislature so to do as admittedly they were the rejected and so-called repealed laws. Therefore, the only intention underlying Article 281 was indemnity and for that purpose only limited purported legitimisation was accorded to the laws and similar validation to the actions of the innocent functionaries. One may say that even purported legitimation and validation was not entirely necessary if the intention was only of indemnity.
632. Draftsmen are not consistent on this issue. In normal circumstances a careful one is most likely, and an over punctilious one is necessarily, to include purported legitimisation and validation in order to make sure that the indemnity is effective against all possible judicial attack and interference. But it is not necessary to assume any principles to reach that conclusion in this case. I have already explained the circumstances and events leading up to this law of indemnity in Article
281. Martial Law and actions thereunder bad been under constant attack in political as well as in judicial field. The entire concept of our Constitution and definition of law in Pakistan was under drastic re-appraisal. Apart from already decided cases in law Courts, it could not be ignored that the Provincial administrations were to start functioning under the federal concept of legitimate autonomy In two Provinces, Governments were being established by opposition parties. Therefore, in this background, if the draftsman was given the task that indemnity must be provided to innocent functionaries of State by all possible methods of draftsmanship, he would, as he did.
633. Certainly provide for the purported legitimisation and validation (sub-Artices (I) and (2)) so as to provide the absolutely sure support to the real intention of granting effective indemnity in sub- Article (3) in Article 281. One test of soundness of this reasoning is to imagine the provision in sub- Article (3) being the entire law of indemnity without support of sub-Articles (1) and (2). In the absence of legitimisation and validation, of course, only on deeming basis contained in sub- Articles (2) and (1) (read in reverse order), sub-Article (3) would stand so exposed that indemnity in the context of events in Pakistan would have come under cloud of uncertainty.
634. ' It needs clarification that in the foregoing discussion, the observations made on the arguments based on certain assumed injurious consequences, following from the non-acceptance of the arguments from the State side, are only to find the intention underlying Article 281 in the context of "State necessity" as a constitutional concept. In ordinary circumstances, Court would not while interpreting and applying law, be influenced by any such considerations.
635. ' The only aspect left to be examined under this question' (No, V) is whether the intention spelled out above can be attributed to the Legislature without any serious violation to the language of Article 281. My answer is in the affirmative. Some comment in this behalf has been made above.
636. However, before taking up the subject again I must remark that the intention is so strong and consequences of wrong interpretation are so far-reaching that no such principle of interpretation would prevent the Courts ignoring the mistakes of the draftsman in fulfilling the intentions of the framers or if need be, correcting them and/ or supplying the omissions as a legitimate judicial function. Case-law is abundant on this subject. As in my view the need does not arise in this case, therefore rulings and opinions are not being cited. I will, however, in order to demonstrate the fulfilment of the above spelled out strong intention of the Legislature (of indemnity only) resort to reading the three clauses of Article 281 together by process of merger of each into the other. It is perfectly valid way of reading a legal provision. See Maxwell on Interpretation of Statutes Page 155; Jennings v. Kelly (1), Curtis v. Maloney (2) and The Punjab Province v. Malik Khizar Hayat Khan Tiwana (3). Their Lordships, in the last mentioned case, were pleased to "amalgamate" two separate sections (4 and 5) of the relevant law, into a "single provision", so as to find the true meaning thereof. In this case also, if all three sub-Articles of Article 281 are 'amalgamated' and read as 'a single provision' by starting with sub-Article (3) (Indemnity) and 'merging' it into sub- Article (2) (Validation) and sub-Article (1) (Legitimisation), it would become clear that the entire provision (Article 281) was enacted to provide indemnity. The expressions 'powers referred to in clause (2) . . . . " and 'in exercise of powers derived from President's orders..." used in sub-Articles (3) and (2), respectively were meant to effect the 'amalgamation' in reverse order starting with sub- Article (3). Thus, read the meaning only of indemnity emerges into focus which can further be seen by re-writing and re-phrasing the sub-Articles of Article 281 into one 'single provision% which would read somewhat as follows:- "No suit or other legal proceedings shall lie in any Court against any authority or person for orders (etc.) made or sentences passed whether in exercise or purported exercise of powers derived from any President's order (etc.) or in execution of or in compliance with orders made (etc.) . . . In exercise or purported exercise of such powers; and for this purpose, notwithstanding any judgment of any Court, all proclamations (etc.). Made as from the 25th March, 1969, are hereby declared to have been validly made by competent authority and all such orders made (etc.) .. Shall be deemed, for the same purpose, to be and always to have been valid-ly made, taken or done."
637. As a result of the discussion on this subject of interpretation of Article 281, I have come to the conclusion that the framers thereof intended only indemnification of innocent functionaries of the State and for that limited purpose cover of deemed and purported legitimisation and validation was provided. There was no other wider intention of wholesale objective legitimisation of all illegitimate measures taken, and validation of illegal, unjust and void acts done during the entire period when the country was under a Martial Law which has been declared unconstitutional by the highest Court in the realm and has also been condemned and accursed by all including the chosen representatives of the people.
638. ' If this interpretation is not accepted, it would mean to imply (of course without any justification) that the framers of the interim Constitution wanted: to flout the mandates of the Objectives Resolution and the principles adopted by themselves in the Preamble of the interim Constitution; to
(1) (1940) A C 206 (2) 1951 K B 736 (3) PLD 1956 FC 201 go against the limitations placed by themselves on the Executive qua the imposition of Martial Law and exercise of powers by the President in legislative and judicial fields; to create anomalies (between various provisions of the interim Constitution); to ignore all cannons of civilized law- making (namely-retrospective validation when prospective is impossible and validation of what is void ab initio); to negate the Fundamental Rights adopted in the preamble by providing retrospective punishment by bill of Attainder; to assume judicial power so as to nullify and 'do away with' the effect of the judgments of the superior Courts; and above all, the mock the mandate of the people against the political Martial Law and rejection of all that goes with it. There is nothing in the language of Article 281 so as to make it impossible for the Courts to give effective to the real intention of the framers thereof. I, therefore, repel the arguments of the learned counsel for the State and hold that the legitimisation of all Martial Law measures and validation of all acts thereunder in Article 281 are only for limited purpose of, and intended to provide deeming and purported basis for, the indemnification of innocent functionaries of the State and do not affect the rights of the citizens available to them under the law of Pakistan as declared by the Supreme Court in Asma Jilani's case.
639. Question No, VI : ' It has been vehemently argued by the learned counsel for the State that this Court has no jurisdiction to consider and determine the questions raised qua the interpretation and application of Article 281 of the interim Constitution. Reliance has been placed on the language of ouster used in sub-Articles (1) and (3) thereof. As 1 have held there is no need to strike down Article 281 as ultra vires, therefore, the argument that the Judges of this Court having undertaken to preserve the interim Constitution cannot declare any of its provisions as ultra vires, does not need any detailed examination. However, as earlier observed in this connection, there is no impediment in declaring any provision of the interim Constitution as ultra vires the Objectives Resolution which is a Supra- constitutional Instrument. Technically speaking also, there is no bar because even in the oath both expressions 'the Constitution and the law' and the 'interim Constitution' have been separately mentioned-the former for performance of the functions in accord therewith, and the latter for its protection, preservation and defence. The former is a wider term without any qualification which would undoubtedly include Supra-constitutional Instruments like the Objectives Resolution and other constitutional and legal principles in addition to a formal Constitution like the interim one; while the latter expression is confined to formal interim Constitution only. Law, as defined in Asma Jilani's case, has a wider connotation than has, so far, been generally accepted. Moreover, if any provision of the interim Constitution would have been struck down as being in conflict with and ultra vires the Supra-constitutional Instrument that provision would not have been treated as a part of the interim Constitution. That being so, no possibility of any conflict with the oath would have arisen because, as observed in Asma Jilani's case as well as in the earlier order in this case, constitution/ law is what is ultimately interpreted and determined by the Courts as the Constitution and/or as the law. The bar of acquiescence or estoppel is not at all relevant to the consideration of the question involved.
640. ' There is another aspect of the matter. In Asma Jilani's case, the judicial power has been held to reside in the Courts. There is no need for specific formal conferment as it is 'inherent' in federalism and is definitely 'reserved' in our system of Constitution wherein it has been accepted that sovereignty belongs to Allah and the authority exercised by the people of Pakistan is only delegated and is a sacred trust. There are observations relating to judicial power in .11 the opinions forming part of the judgment in Asma Jilani's case. However, I will quote only two of them. Sajjad Ahmad Jan, J., was pleased to observe as follows:- "The totality of judical powers resides in the judicature of Pakistan, whose powers for dispensation of justice as the trustee of the society, are indestructable, and cannot be taken away by the arbitrary will of an individual. To the judiciary is committed the duty of being the watch-dog of the actions and virtues of the other coordinate limbs of the State. This Court has plenary judicial power, and the contents of that power cannot be sha .Ed with any other limb of the Government, executive or Legislature. While the jurisdiction of superior Courts may be regulated by the Constitution, any effort to destroy the judicial power is a senseless exercise "
641. ' In the judgment of the learned Chief Justice, the following distinction has been made between judicial power and jurisdiction :- "...That the Constitution can confer or restrict the jurisdiction of even superior Courts but this is not the same thing as saying that it can also restrict or curtail the judicial power, because, that in effect would be denying to the Court the very function for which it exists, i,e,, to decide a controversy even if it relates to its own jurisdiction."
642. ' I need not make any further comment on this aspect of the matter ; except that, constitutionally speaking, the creation of Courts is the function of Legislature and appointment of Judges, that of the Executive. After the performance of these two functions when the Courts are established and the Judges have assumed office, the afore-mentioned two organs of the State cannot withdraw, control or even regulate the judicial power which, in our case, rests in the judiciary not only because of the system of federalism but also because of peculiar constitutional position under the concept of sovereignty of and trust from Almighty Allah. As distinguished from judicial power, it is conceded, jurisdiction can be conferred, withdrawn and regulated in accordance with and subject to the formal Constitution and the. Law. The questions that have arisen in this case and which needed determination are, in my view, without any doubt, within the power and jurisdiction of this Court to determine.
643. ' There is, however, yet another aspect of this matter. As already held, the intention and purpose underlying Article 281 was limited only to the indemnification of innocent functionaries of State. The expressions used in that Article conveying ouster of jurisdiction of Courts have to be read subject to the finding on the main question of the interpretation of subject-matter of this Article. Read in that light, it cannot be said that the National Assembly intended to deny jurisdiction to the superior Courts to consider questions under Article 281 other than those relating to aforementioned indemnification.
644. ' The answer to the question of jurisdiction would not be complete without making a brief reference to an argument that the principles contained in the Objectives Resolution are just like Principles of policy and that in this behalf (principles of policy) jurisdiction of the Courts has been ousted by Article 28 of the interim Constitution. Firstly, the Objectives Resolution, as already discussed, has an independent existence and the interim Constitution cannot, in any way, nullify its effect, force and mandates. However, the argument even on its face is not acceptable because in Article 27, it has open laid down that "it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those principles in so far as they relate to the functions of the organ or authority". Judiciary is one of the main organs of the State. Judges performing functions on behalf of this organ are bound to act in accordance with the Principles of Policy, in so far as they relate to functions of this organ, i. e., the judiciary. Thus, even according to the interim Constitution, the Judiciary while considering the questions involving any Principles of Policy, is bound to act in accordance with those principles. The bar of jurisdiction in Article 28 does not, in any way, dilute the effect of Article
21. Therefore, there is no force in the argument that this Court is barred from considering the principles which otherwise it is duty-bound under Article 27, to enforce. 1 am conscious that while considering the application of ordinary laws the Courts would not interfere if the challenge is entirely based on any Principle of Policy contained in Chapter 2 of the Interim Constitution. But if a question arises which is not covered by any ordinary law and relates to the interpretation of the Constitution itself cr the application of any Supra-constitutional Instrument, then obviously, in the aosence of any other guidance, the Courts in pursuance of the mandate in sub-Article (1) of Article 27, would be guided by the Principles of Policy. Similar question was raised in the grounds of Civil Review Petition No, K-2 of 1967 decided by the Supreme Court on 14th April, 1967. Since then, major changes have been brought about in the constitutional and legal concepts in Pakistan by the ruling in Asrna case. Considering al these aspects, 1 am of the view that A title 281 of the interim Constitution does not create a bar to the jurisdiction of this Court in respect of the consideration of the questions involved in this case.
645. ' There is yet the last aspect of this matter. As would be presently shown in answer to the last question, in case the contention of wider scope of Article 281 including objective legitimisation and validation of measures and acts affecting rights of citizens is conceded on argument of literal interpretation ; even then the jurisdiction of this Court to consider the validity or otherwise of actions taken during the relevant period has not been ousted as effectively as it could have been.
646. There is no specific barring provision in sub-Article (2) of Article 281 as distinguished from sub- Articles (1) and (3).
647. ' 1n view of the above discussion, I hold that there is no limitation on the judicial powers and/or jurisdiction of this Court to entertain these petitions, to consider the questions raised thereupon and to grant the relief if the entitlement thereto is established under the Constitution and the law.
648. Question No, VII : ' I need not repeat the facts involved in these cases. The journalists have been convicted and sentenced by a Summary Military Court for offences under Martial Law Regulations Nos. 16-A, 89 (1)
(b) and 89 (1) (c). Mukhtar Rana the other detenu, has been convicted and sentenced by another Military Court for offences under Martial Law Regulations (Nos. 16-A and 89). The convictions took place during the Martial Law period. It has not been disputed before us that the ordinary civil Courts were open and functioning and further that question of State necessity is not involved in so far as the facts of the cases are concerned. Ordinary laws for dealing with persons in comparable situations were in operation and the detenus could be dealt with under those laws. In answer to the preceding questions, I have already held that Article 281 of the interim Constitution is not wide enough to save and continue illegal and void convictions and sentences. It is not possible to condone these convictions and sentences on the basis of the tests of State necessity laid down by the learned Chief Justice in Asma Ji/ani's case. Indeed, no attempt has been made from the side of the State to support the continuance on the basis of those tests. However, while dealing with some other points (effects of Fundamental Rights guaranteed by the Constitution of 1962 and 1972 (interim) on these convictions and sentences) it was contended that the conviction of the detenus is a past and closed matter and that their continued detention, while serving the sentences, does not make any difference. Some cases in which a contrary view qua the continued detention was expressed were sought to be distinguished on the basis that they related to preventive detention and because preventive detention is different in its inception from a detention as a result of conviction and sentence, therefore, continued preventive detention is not a past and closed transaction while continued detention as a convict is a past and closed matter. In my view, the distinction is not real. In both situations, whether of preventive detention or detention on conviction, the .Validity or otherwise of the source order is always relevant for the purpose of determining the legality of the further continuance of the detention and/or imprisonment. When a competent Court strikes down or sets aside the basic order as void, illegal or improper, the result in both situations is the release from the detention. In both the cases, the continued detention is a continuing wrong and thus the remedies available in law remain open to the parties aggrieved. In Mazhar Hossain v.
649. Province of East Pakistan (1) their Lordships were dealing with a petition for special leave to appeal arising out of a habeas corpus petition under section 491, Cr. P. C., for release of a friend of the petitioner from illegal detention in imprisonment on the ground that prisoner earned such remissions as added to period of imprisonment already undergone covered period of sentence inflicted and as such he was entitled to release. Proof, however, was not available of the remission.
650. Prayer for withdrawal of the petition with permission to bring a fresh one in the High Court was allowed because it was held that the detention, even though it resulted from conviction and sentence, if illegal "would be a continuing wrong and petition for release from illegal detention can be filed at any moment." Moreover, it is recognized almost all over the world that even in ordinary situations, 'discontinuance of an emergency', or the 'lifting of the Martial Law', or for that matter on rescission of the suspension of habeas corpus', the right to move for a writ of habeas corpus, if it was earlier dormant, immediately revives and, as already discussed in answer to question No, V, the sentences of confinement, as a result of Martial Law actions having automatically expired, the Courts can make appropriate declaration qua the validity of impugned actions and grant appropriate relief in consequence thereof I am, therefore, of the view that there is absolutely no impediment in granting the relief to the convicts in these cases whose convictions and trials rather the entire proceedings connected therewith, were void ab initio. It needs to be mentioned here that no attempt was made to Justify the trials and convictions on any other basis than the literal interpretation of Article ;81. Of the Constitution which, as already held, does not, in my view, have the effect of saving such like convictions. Looked at from whatever angle, the cases
(1) PLD 1970 SC 397 of the convicts are, in no way different from those of the two detenus before their Lordships of the Supreme Court in the case of Asma Jilani. The Martial Law Regulations for the contravention of which they have been tried and sentenced ; the trials under Martial Law Regulations providing for the constitution of, and trials by Military Courts ; and their protecting instruments like the relevant proclamations and Presidential Orders and Regulations in this behalf, being void ah initio and not condonable on basis of State necessity, the detenus are entitled' to the release unless they are required to be detained in any other case or matter. I would, therefore, declare that all these proceedings, convictions and also actions impugned in Writ Petitions Nos. 403, 404 and 625 of 1972 are void, without lawful authority and of no legal effect. The other two petitions of Mukhtar Rana (namely, Criminal Miscellaneous No, 330/B-72 and Writ Petition No, 223 of 1972) ; one for confirmation of anticipatory bail granted by this Court in a murder case and the other for declaration that his trial by a Military Court in the same case is void and illegal, are also liable to succeed on the above considerations, in so far as in that murder case he is accused of having contravened Martial Law Regulations Nos. 16-A and 89. I would, therefore, accept Writ Petition No, 223 of 1972, and declare that the proceedings so far held against him by a Military Court are void, without lawful authority and of no legal effect, and further that in so far as the charge of contravention of Martial Law Regulations Nos. 16-A and 89 is concerned, he is entitled to be released ; subject, of course, to the condition that he is not required to be detailed in any other matter or in that very murder case as an ordinary accused person by application of the ordinary law as contained in the Pakistan Penal Code read with Criminal Procedure Code. Same would apply to Writ Petition No, 335 of 1972. I direct accordingly. As a consequence of this direction, the question of confirmation of bail of Mukhtar Rana qua offences under Martial Law Regulations would not arise and if he is required to be detained under the ordinary law, his remedy would be by making a proper application before the Courts concerned tinder section 497/498, Cr. P. C.
651. Question No, VIII : ' After having held that the detenus are entitled to the relief claimed for on the progressive interpretation of Article 281, which is in accord with the intention of the Legislature and is also not violative of its language, it is really not necessary for me to go into the question if the purely technical interpretation put forward by the learned counsel for the State were to be accepted, what would have been the result. But I am conscious that considerable amount of time was spent in finding out the effect of sub-Article (2) of Article 281 and meaning and connotation of expressions used therein. Therefore, I would like to observe that if I were to accept this so called literal interpretation, I would then have agreed with my learned brother Karam Elahee Chauhan, J., that the journalists in Writ Petitions Nos. 403 and 404 of 1972 are entitled to be released on the finding of ma/a fides and case of Mukhtar Rana and his co-accused in Writ Petitions No, 123 and 335 of 1972 would be deemed to have become pending before ordinary Court as a result of the interpretation of the provisions of President's Order No, 14 of 1972 ; with consequent results qua the prayer for confirmation of anticipatory bail in Criminal Miscellaneous No, 330 of 1972. And as sufficient material has not been produced before us to properly consider the questions of mala fides in case of conviction of Mukhtar Rana by a Military Court for offences under Martial Law Regulations Nos.
652. 16-A and 89 nor any arguments have been addressed 02 the basis of factual mala fides, therefore in the above context, I would have further agreed with my learned brother that Writ Petition No, 625 of 1972 would have been liable to be dismissed.
653. ' Before closing this judgment, I want to make a brief reference to an unfortunate aspect of this case. From the side of the petitioners, Mr. M. Anwar tried to show that journalists using language more objectionable than used in the journals published by his clients (detenus) in these cases have not been proceeded against under the relevant Martial Law Regulations which, it was sought to be contended, amounted to discrimination. On the other hand, it was pointed out that at least, in the case of 'Punjab Punch', the journal published by another set of detenus, it contained most objectionable language which, it was asserted, no civilized society would accept or permit. We have not heard these cases as a Court of Appeal, nor the entire relevant material is before us. The decision on the validity of convictions is based on the questions relating to constitutionality and legality of trials by Military Courts under Martial Law Regulations. If the trials would have been legal before lawful tribunals for offences created by valid laws, the decision on merits then would have depended on the facts and allegations made in each ease. Therefore, it is impossible to give any decision on the basis of the above argument. However, some of the issues of 'Punjab Punch', which are on one of the files of this Court, prima facie contained objectionable language which journalistic trend in our society cannot be approved and rather has to be condemned ; and if there are some other journals which indulge in similar practice, my views would not be in any way different.
654. ' At the close of the arguments, a joint verbal request was made that whatever the decision in the petitions, it should be certified as a fit case for appeal to the Supreme Court. I am of the view that substantial question of law on the interpretation of the Constitution is involved. Therefore, I would allow the prayer and would direct that the requisite Certificate be prepared and granted. ORDER OP THE COURT ' In accordance with the view of the majority :
(a) Writ Petitions Nos. 403 and 404 of 1972 are allowed. The convictions and sentences of Altaf Hassan Qureshi, Dr. Ejaz Hassan Qureshi, Mujib-ur-Rehman Shami, Muzaffar Qadir and Hussain Naqi are declared to be without lawful authority and having been brought about in an unlawful manner and as such of no legal effect.
(b) Writ Petitions Nos. 223 and 335 filed by Muhammad Mukhtar Rana and Muhammad Riaz Shahid, respectively, are allowed to the extent that their cases shall now be heard by an ordinary Criminal Court.
(e) Writ Petition No, 625 of 1972 of Muhammad Mukhtar Rana has been dismissed.
2. The parties have been left to bear their own costs.
3. These cases involve substantial questions of law as to the interpretation of the Constitution and we grant certificate of fitness under Article 186 (2) of the Interim Constitution for appeal to the Supreme Court.