1. KHUDA BAKBSH A. KAZI (CHAIRIMAN).-The above four cases are pending in this Court at various stages since long.
2. After my taking over as Chairman of this Court and after the cases were put up before me for hearing, Mr. A. R. Kazi.
3. Advocate for the accused in all the four matters raised the following legal objections:-
(1) All the laws including Ordinances passed during the Martial Law period i.e. from 25th March 1969 to 20th April 1972 were declared void by the Supreme Court in Asma Jilani's cast and hence 1. R, U., 1969 which was passed in November1969 in the Martial law period was void at that be tried retrospectively.
(2) That this Court was not empowered to take cognizance of an offence as laid down in the Criminal Procedure Code.
4. The learned Advocate for the accused pressed that I should give finding on there two legal objections before i proceed further with the matters. As a matter of fact there are many cases of this nature pending in this Court and hence my finding on these two points will to applicable to all such cases.
5. I have heard the learned Representatives of the parties on each point at a very great length and give my ending as under:- Point No.1.-The first objection of the learned Advocate of the accused is that all the Ordinances during Martial Law period from 25th March 1969 to 2Uth April 1972 were declared void by the Supreme Court. In Asma Jilani---s case and hence I. R. O., 1969 which was a product of the Martial Law regime was also vole under the I. R. O., 1969 before 20 April 1972 could not be tried andth offenders punished retrospectively. This objection has been based on the well known judgment of Honourable Supreme Court which has been reported in PLD 1972 SC 139. In this judgement of Honourable Chief Justice of the Supreme Court has summarised his conclusions on page 262.
6. Under conclusion No. 2, his Lordship has held as under.
7. "(2) The Martial Law as proclaimed by General Agha Mohammad Yahya Khan was illegal. The assumption of power by General Agha Mohammad Yahya Khan as the President and the Chief Martial Law Administrator was wholly unconstitutional and cannot be recognised as valid."
8. "(3) General Agha Mohammad Yahya Khan was no doubt in effective control Governmental power for the period that he remained in the saddle, and only those of his legislative and administrative acts can be recognized 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."
9. Thus under conclusion No. 3, his Lordship has clearly laid down that only those of the legislative and administrative acts of the ex-President could be recognised by the Court which may be found to be absolutely necessary on the doctrine of necessity within the limitation of that doctrine to be adjudged by the Courts. On page 264, line 5, his Lordship hate held that the doctrine of necessity is concomitant of the doctrine of legitimacy, and might have relevance in the regime of General Agha Mohammad Yahya Khan. Elucidating further his Lordship on the same page (middle portion) has held that if the taking over by the usurper is complete and effective and this is to be determined on evidence by the Court, the Court may as a matter of necessity treat a 'Law' ay valid but only such parts as:-
(a) are directed to and reasonably required for orderly running of the State;
(b) such as do not Impair the rights of the citizens under the previous lawful Constitution;
(c) such as do not run counter to the previous lawful Constitution and are not intended tostrengthen the usurper.
10. Applying the conclusions arrived at by his Lordship the Chief Justice in the said case I find that sufficient protection has been given to legislative Acts of the ex-President, which might have been absolutely necessary on the doctrine of necessity. It has been left to the Courts to treat a "Law" of the said regime as valid under the conditions as given under clauses (a), (b) and (c) which have already been described above.
11. Now coming to Industrial Relations Ordinance, 1969 the very object shows that it was an Ordinance to amend and consolidate the law relating to the formation of Trade Union the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or matters connected therewith and ancillary thereto. It is further said in the objectives that the National Interest of Pakistan in relation to the achievement of uniformity required Central Legislation in the matter and hence the said Industrial Relations Ordinance, 1969 was passed. Thus it is absolutely clear that the said legislation (Industrial Relations Ordinance, 1969) although passed during .the Martial Law regime did not in any way impair the rights of the citizens under the previous lawful Constitution nor it ran counter to the previous lawful Constitution nor it was intended to strengthen the usurper. On the contrary it was passed for a good cause to regulate the relationship between the employers and workmen and avoidance of any differences or disputes arising between them. Thus this law could come under the doctrine of necessity and could be treated as valid law. Furthermore from 21st April 1972 the day on which Interim Constitution of the Islamic Republic of Pakistan came into force, Article 230 of the said Constitution gives further protection to existing laws. It reads as under:- "260.-(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."
12. Mr. A. R. Kazi the learned Advocate for the accused has drawn my attention to Article 11 (a) of the Interim Constitution which reads as under:- "11. 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."
13. Thereby he argues that since Industrial Relations Ordinance, 1969 was void and hence the acts or omissions committed by persons under that Ordinance could not be punished. I am in respectful disagreement with the contention of the learned Advocate for the accused. I have already discussed at length by giving various quotations from the well known judgment in Asma Jilani's case wherein legislative Acts of the late regime -were given protection under doctrine of necessity if those were not against the public interest and which did not impair the rights of the citizens.
14. Consequently relying on the same judgment as reported in Asma Jilani case I hold that Industrial Relations Ordinance; 1969 is a valid law and hence the accused under the said Ordnance could not seek protection under Article 11 (a) of the Interim Constitution. Accordingly I reject objection No. 1 of the learned Advocate for the accused.
15. Point No. 2.-As far as taking the cognizance of anaffence under the Industrial Relations Ordinance, 1969 is concerned, section 36(3) of the Ordinance very clearly lays down that Labour Court shall for the purpose of trying an offence under the Ordinance has the same powers as are vested in the Court of a Magistrate of First Class under the Criminal Procedure Code of 1898 and shall for the purpose of appeal from a sentence passed by it, be deemed to be a Court of Session under that Code. Section 36(1) of the said Ordinance defines the procedure to be adopted by the Labour Court for trying an offence under the said Ordinance. Section 36(5)(c) lays down that the Labour Court would try offences under this Ordinance. Section 3 defines the constitution of a Labour Court.
16. Section 35 (1) lays down that Provincial Government may, by notification in the official Gazette, establish as many Labour Courts as it considers necessary and, where it establishes more than one Labour Court, shall specify in the notification the territorial limits within which each one of them shall exercise jurisdiction under this Ordinance. Thus after a Labour Court is established under section 35 of the ordinance and after such notification is issued by the Provincial Government the Labour Court shall exercise all powers and, perform all functions as contemplated under section 36 of the Ordinance. In view of the above legal position, no further notification for taking cognizance of an offence under the said Ordinance by a Labour Court appears to be necessary. Hence I reject the second objection of the learned Advocate for the accused. Orders accordingly.