DORAB PATEL, J.-----The appellants in all these High Court appeals had filed constitutional petitions challenging the validity of orders of the Settlement Department. These petitions had been filed under Article 98 of the 1962 Constitution, except the petition, which has led to High Court Appeal No. 24 of 1973. The petition in this appeal was filed in 1971 under Article 98 of the 1962 Constitution read with the Provisional Constitution Order, 1969, and it is sufficient to state here that all these petitions were heard and dismissed by learned Single Judges of this Court after the promulgation of the Lady Reforms Ordinance, 1972 (Ordinance XII of 1972). This Ordinance was promulgated on 14th April 1972, and came into force immediately. I shall refer to it as the first Ordinance, and sections 2 and 3 in it are relevant. They read: --- "2. Amendment of certain laws.-(1) The Acts and Ordinances, specified in the Schedule are hereby amended to the extent and in the manner specified in the fourth column thereof.
(2) Where this Ordinance requires that in any specified law, or in any section or other portion thereof, certain words shall be substituted for certain other words, or that certain words shall be omitted, the substitution or omission, as the case may be, shall, except where it is otherwise expressly provided, be made wherever the words referred to occur in that law, or as the case may be, in that section or portion.
3. Certain appeals barred.-As from the commencement of this Ordinance-
(a) no appeal under the provisions of any Letters Patent, as applicable to a High Court, shall be entertained by such High Court ; and
(b) no second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure, 1908 (V of 1908), as amended by this Ordinance Provided that nothing contained in this Ordinance stall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance."
As to subsection (1) of section 2, the Letters Patent of the High Court are amongst the statutes specified in the Schedule and the amendment to the Letters Patent states: "Clause 10 shall be omitted." As it was this clause, which conferred a right of appeal against judgments of Single Judges of the High Courts to Division Benches of the High Courts, the result of the first Ordinance was that the judgments under appeal could not have been challenged in this Court, and that is also expressly stated in section 3.
2. However the first Ordinance was repealed on 10th August 1972, by the Law Reforms (Amendment)
Ordinance, 1972. 1 shall refer to this Ordinance as the amending Ordinance, and, according to section 1(2), "It shall come into force at once, and shall be deemed to have taken effect on the 14th April 1972." Therefore section 2 stated: --- "2. Amendment of section 3, Ordinance XII of 1972.-In the Law Reforms Ordinance, 1972 (XII of 1972), hereinafter referred to as the said Ordinance, for section 3 the following shall be substituted and shall be deemed always to have been so substituted, namely: --- Section 3 read :-
3. Appeal to High Court in certain cases.-(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that High Court in the exercise of its original civil jurisdiction Provided that no such appeal shall lie from an order which does not dispose of the whole matter before the Court.
(2) An appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court in the exercise of its original civil jurisdiction Provided that no such appeal shall lie from an order which does not dispose of the whole matter before the Court.
(2) No appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that High Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan in a matter arising under any law relating to the rehabilitation and settlement of displaced persons or from an order so made under sub-paragraph (i) of paragraph
(b) of that clause.
(3) Nothing contained in this Ordinance shall be construed as affecting-
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance ; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
As a right of appeal- against judgments of Single Judges of the High Courts was thus revived, consequential provisions to save limitations were contained in section 4, but these and other sections of this Ordinance are not relevant to the question for consideration before us.
3. Finally the amending Ordinance was repealed on 12th September 1972 by the Law Reforms (Amendment) Act, 1972. Section 1 of this Act (to which I shall refer as the said Act) also contains the same provision that it "shall come into force at once and shall be deemed to have taken effect on the 14th April 1972". In view of this provision, the dates of the judgments under appeal are not relevant, as there is no question of limitations. Revert--ing however to the said Act, sections 2 and 3 are relevant, and I would therefore reproduce them: --- "2. Amendment of section 3, Ordinance XII of 1972.-In the Law Reforms Ordinance, 1972 (XII of 1972), hereinafter referred to as the said Ordinance, for section 3 the following shall be substituted and shall be deemed always to have been so substituted, namely: ---
3. Appeal to High Court in certain cases.-(1) An appeal shall lie to a ,'Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub-paragraph (1) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, tribunal or authority against the original order:
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affect--ing-
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the com--mencement of this Ordinance ; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
4. In view of the proviso to subsection (2) of section 3, the office of this Court has raised an objection that the appeals are not maintainable and it is this objection which we have to decide.
Now all these appeals have been filed under subsection (1) of section 3 of the amending Ordinance or of the said Act, depending on the dates when they were filed. But this is not material, as subsection (1) of section 3 of the amending Ordinance is in par materia with the corresponding provisions of the said Act. However in both the statutes, this subsection confers a right of appeal only against "a decree passed or final order made by a Single Judge of (the) High Court in the exercise of its original civil jurisdiction;" and as all the appeals before us have been filed under this subsection, the common contention of all the learned counsel for the appellants was that constitutional petitions are heard in the exercise of this Court's original civil jurisdiction. How--ever, before I examine this submission, it is necessary to consider a prelimi--nary objection raised by Mr. Khalid Ishaque.
5. Mr. Khalid Ishaque referred us to the provisions of the Interim Constitution and to the Proclamation of 20-4-1972, withdrawing Martial Law and submitted that the possible result of these constitutional changes, in the events that had happened, was that constitutional petitions filed before the Interim Constitution had abated. Now if this proposition be correct, it is obvious that this Court would not have any jurisdiction to entertain these appeals, therefore, it will be convenient to examine it first, and I will consider the arguments advanced by the learned Attorney-General and by Mr. Khalid Ishaque on the effect of the withdrawal of Martial Law and the promulgation of the Interim Constitution.
6. I would begin with the declaration of Martial Law in 1969, by the Chief Martial Law Administrator by the Procamation of Martial Law dated 25th March 1969. The next Order which is relevant is the Provisional Consti--tution Order dated 4th April 1969. Clause 3 of this Order prescribed that notwithstanding the abrogation of the 1962 Constitution "the State of Pakistan shall, except as provided in this Order, be governed as nearly as may be in accordance with the said Constitution."
As the jurisdiction of this Court was thus saved, the petitions under appeal, which were filed before 25th March 1969, were heard' and decided under Article 98 read with the Provisional Constitution Order, and so was the petition in Appeal No. 24/73 which had been filed under Article 98 read with the Provisional Constitution Order. Finally, I would mention here that this Court's jurisdic--petition was regulated or rather curtailed by the jurisdiction of Courts (Removal of Doubts) Order, 1969 of 30-6-1969. Now, under the Proclamation of Martial Law, General Yahya Khan had "assumed the office of President of the Islamic Republic of Pakistan", yet he had issued that Proclamation as well as the Provisional Constitution Order only as Chief Martial Law Administra--tor. On the other hand, the Jurisdiction of Courts (Removal of Doubts) Order was a President's Order. The learned Attorney- General, therefore, emphasis--ed this distinction between Orders issued by the President and Orders issued by the Chief Martial Law Administrator, and, as I shall presently show, this distinction is important. The next Proclamation which requires consi--deration is the Proclamation of 20-4- 1972, withdrawing Martial Law. It reads as follows: "Whereas Martial Law was imposed throughout Pakistan by the Pro--clamation of the 25th day of March 1969, and the Provisional Con--stitution Order was issued in pursuance of that Proclamation which was itself amended by the Proclamation of the 20th day of December 1971; And whereas the Chief Martial Law Administrator and President of Pakistan promised to withdraw the Martial Law on the enforcement of the Interim Constitution; And whereas the Interim Constitution was passed by the National Assembly of Pakistan on the 17th day of April 1972, and has since been assented to by the President; Now, therefore, in pursuance of the Proclamation of the 25th day of March, 1969, read with the Proclamation of the 20th day of December 1971, and in exercise of all powers enabling him in that behalf, the Chief Martial Law Administrator and President is pleased to make the following Proclamation :-
(1) The Proclamation of the 25th day of March 1969, read with the Proclamation of the 20th day of December 1971, and the Provisional Constitution Order, are hereby withdrawn.
(2) The offices of the Chief Martial Law Administrator, the Martial Law Administrator and all other Martial Law authorities and Military Courts appointed in pursuance of the aforesaid proclamations are hereby abolished.
(3) The power of the Chief Martial Law Administrator and President of Pakistan to issue Martial Law Regulations and Martial Law 'Orders and Constitutional Orders lapses, and there lapses also the Power of any Martial Law authority subordinate to Chief Martial Law Administrator to issue any orders or to take any action whatso--ever."
But the Interim Constitution was promulgated on 21-4-1972, and as rightly -submitted by the learned Attorney-General, it contains repealing provi--sions. However, as Martial Law had been withdrawn on 20-4-1972, Mr. Khalid Ishaque submitted that all Martial Law Orders as well as the Provin--cial Constitution Order of 4th April 1959, bad lapsed before the coming into force of the Interim Constitution, and the result, according to Mr. Khalid Ishaque, was that all petitions filed before the Interim Constitu--petition had abated. On the other hand, the learned Attorney-General submit--ted on the basis of Articles 280, 281 and 295 that all pending proceedings had been saved.
It is, therefore, necessary to examine these Articles.
7. Article 280 reads as follows:
(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 Martial Law Orders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adap--tations, have effect as such: Provided that no Bill to amend or to repeal any of the Martial Law Regulation or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the Presi--dent.
(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 to 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 exer--cise, in relation to the Province the powers conferred on the Presi--dent 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 exercise-able 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 Constitu--petition.
(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."
Article 281, as originally enacted, read: "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 by-laws, or in execution of any Orders made or sentences passed by any authority in the exercise or pur--ported 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."
Finally Article 295 is very relevant. It reads: "295.-Where a law (including a President's Order, a Martial Law Regu--lation 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 insti--tuted, 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."
8. The language of Article 295, is wide, and, as rightly submitted by the learned Attorney-General, clauses (a) to (e) correspond to clauses (a) to (e) of section 6 of the General Clauses Act, 1897.
Similarly, except for clause (f), and this is not relevant, the article corresponds to Article 250 of the 1962 Constitution and even Mr. Khalid --Ishaq conceded that that Article had been sufficient to save pending proceedings on the coming into force of the 1962 Constitution and the revocation of the 1958 Martial Law. But as the 1958 Martial Law had been revoked by Article 225 of the 1962 Constitution, Mr. Khalid Ishaq's submission was that Article 295 was not sufficient to save pending proceedings, because, unlike the situation prevailing when the 1962 Constitution came into force, Martial Law had been withdrawn the day prior to the coming into force of the Interim Constitution, and, according to learned counsel, this difference was decisive. But, a sovereign Legislature is free to enact laws, which have lapsed or are invalid, and not less so when it is sitting as a Constituent Assembly. Therefore, tile real question for determination is whether the effect of Articles 280 and 281 is to re--enact, however, notionally, the Proclamation of Martial Law dated 25th March 1969, and the Provisional Constitution Order of 4th April 1969, and if they have been re-enacted, then, as the language of Article 295 is very wide, there cannot be any doubt that they have been repealed under this Article, with the result that all pending proceedings have been saved under clause (e) of Art. 295. In considering this question we have to bear in mind that a Constitution is not to be interpreted in a narrow or technical manner, and a construction which leads to a legal vacuum is to be avoided. The learned Attorney-General therefore invited us to give full effect to Article 281 and to hold that the Proclamation of 25-3-69, and a Provi--sional Constitution Odder of 4-4-1969 had been re-enacted under this Article and then repealed by Article 295. In this connection he drew our atten--petition to the fact that Article 280 expressly revoked the Proclamation of 25-3-1969, "with effect as from the commencing day", and he submitted that this provision plainly manifested the intention of the National Assembly that it had re-enacted the Proclamation of 25-3-1969, and then revoked it. I agree with this submission. The language of clause 1 of Article 281 is wide, and it validates all Proclamations and Martial Law Regulations. Now, the National Assembly had been convened to pass the Interim Constitution, and it must be presumed to be aware of the problems arising from the end of Martial Law, therefore, in my humble opinion, the effect of clause 1 of Article 281 was to re-enact the Proclamation of 25-3-1969, and the Provi--sional Constitution Order and thereafter they were repealed under Article 295. Mr. Khalid Ishaq, however, submitted that as the Provisional Constitution Order was a supra-constitutional document it was not a Martial Law Regulation within the meaning of clause 1 of Article 281. 1 pointed out earlier that this Order was signed by General Yahya Khan in his capacity as the Chief Martial Law Administrator, and it was issued as a Martial Law Regulation, unlike, for instance, the Jurisdiction of Courts (Removal of Doubts) Order, which was a President's Order. And similarly the Laws (Continuance in Force) Order, 1958, was a President's Order, there--fore, the President and Chief Martial Law Administrator was, at all times aware of the distinction between a President's Order and a Martial Law Regulation, and as he chose to promulgate the Provisional Constitution Order as a Martial Law Regulation, it is a Martial Law Regulation, and nothing else. I also venture to think that it is in keeping with the concept of Martial Law to issue a supra-constitutional document as a Martial Law Regulation. In any case, we cannot go behind the document, the more so as the consequences of accepting Mr. Khalid Ishaq's submission would be disastrous. This means that the Provisional Constitution Order was re- enacted on the coming into force of the Interim Constitution and then repealed, therefore, its earlier withdrawal by the Chief Martial Law Admi--nistrator lost its significance, and all proceedings pending in the Courts were saved by Article 295.
9. I would now briefly consider the learned Attorney-General's submis--sion that the 1972 Proclamation withdrawing Martial Law was issued ex abundant cautele, and I would first observe that the National Assembly was convened for the purpose of framing the Interim Constitution by President's Order 11 of 1972. The preamble to this Order reads: "Whereas the National Assembly was elected more than a year ago but due to certain circumstances has been unable to meet so far; And whereas it is necessary to make provision for summoning the National Assembly at an early date for the purposes hereinafter appearing; Now, therefore, in pursuance of the Proclamation of the 25th day of March 1969, read with the Proclamation of the 20th day of Decem--ber 1971, and in exercise of all powers enabling him in that behalf, the President and the Chief Martial Law Administrator is pleased to make the following Order."
I would also recall here that the Proclamation withdrawing Martial Law expressly points out, "The Chief Martial Law Administrator and President of Pakistan promised to withdraw the Martial Law on the enforcement of the Interim Constitution; and the Proclamation also states that "the Interim Constitution was passed by the National Assembly..---..On the 17th day of April 1972." Now, although the legality of Martial Law had been challenged in Asma Jilani's case (PLD 1972 SC 139), it is clear that the Interim Constitution bad been passed by the National Assembly before their Lordships had pronounced their judgment in Asma Jalani's case, therefore, although Martial Law was inconsistent with the very concept of a Constitution, its withdrawal by the Chief Martial Law, Administrator was, according to the learned Attorney---General, necessary in case their Lordships had upheld the rule laid down by -them in 1958 in The State v. Dosso (PLD 1958 SC (Pak.) 533); and if Dosso's judgment was not -followed, even then, the withdrawal of Martial Law by the Chief Martial Law Administrator was necessary, lest the rule in Dosso's case ever be resurrected. Bearing in mind these circumstances, and the fact that it is not known whether -the President and Chief Martial Law Administrator had issued the Pro--clamation before or after becoming aware of the judgment in Asma Jilani's case, I would agree with the submission that this notification was issued ex abundant!
Cautele. That being so, it is hardly relevant to the question L whether the National Assembly had re- enacted and repealed the Proclamation of 25th March 1969 and the Provisional Constitution Order of 4th April 1969 and for the reasons given earlier, I am satisfied that both these supra constitutional documents, as Mr. Khalid Ishaque called them, were re-enacted and then repealed under Article 295, the more so as this article refers to a law including a Martial Law Regulation which "is repealed, or is deemed to have been repealed, by, under, or by virtue of the Interim Constitution." Therefore, all the petitions pending in this Court on 20th April 1972, were saved by clause (c) of Article 295, and as they were saved, the next question for determination is whether the appellants are entitled to challenge the judg--ments passed against them in an appeal to this Court.
10. Mr. Akhtar Mahmood and all the learned counsel for the appellants submitted that a right of appeal against the impugned judgments had been conferred by subsection (1) of section 3 of the said Act. They did not base their case on subsection (2) of this section for reasons, which are obvious on a persual of that subsection. Be that as it may, subsection (1), on which all the learned counsel relied, only confers a right of appeal "from a decree pass--ed or final order made by a Single Judge "of this Court" in the exercise of its original civil jurisdiction", therefore all the learned counsel for the appellants submitted that a judgment deciding a constitutional petition was a judgment in the exercise of this Court's original civil jurisdiction. On the other hand, the learned Advocate-General and Mr. Khalid Ishaque both submitted that the words "original civil jurisdiction" in the subsection referred to the jurisdic--petition of this Court to hear and decide suits as a Court of the first instance, subject to the pecuniary limitations in the Karachi Court's Order, 1956.
11. I would now consider the arguments advanced, and Mr. Khalid Ishaque submitted that the words "original civil Jurisdiction" had a long history in this Province going back to 1866. But the subsection to be con--strued by us relates only to the jurisdiction of High Courts, therefore, in view of section 219 of the Government of India Act, 1935, it is unnecessary to examine the position before the [Sind Courts Act, 1926. However, I may first point out that the term "ordinary original Civil jurisdiction" is to be found in the definitions of the Civil Procedure Code. Subsection (4) of section 2 of the Code reads as follows:- "(4) "district" means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary. Original civil jurisdiction of a High Court."
As the Civil Procedure Code was enacted in 1908, the reference in this defini--petition to the "ordinary original civil jurisdiction" of a High Court was on account of the Letters Patent of the three Presidency High Courts of Bombay, Calcutta and Madras, and as the Letters Patent of the Presidency High Courts are in all material particulars identical, I would only refer to the Letters Patent of the Calcutta High Court.
12. Clause 11 of the Letters Patent prescribes that the "High Court of Judicature at Fort William in Bengal shall have and exercise ordinary original civil jurisdiction within such limits as may, from time to time, be declared and prescribed by any law.------...", and it is sufficient to state here that the local limits prescribed were the boundaries of the city of Calcutta. Clause 12 of the Letters Patent empowers the Court to hear the types of suits specified in that clause and the result is that the Presidency High Courts had, in consequence, the power to try all suits affecting land within their local limits and they also had jurisdiction in personam. It is not the extent of this jurisdiction which is important, but the fact that the Presidency High Courts were, in consequence, Courts of the first instance and heard and decided suits on the evidence recorded by them. But they also had appellate jurisdic--petition for the Province under their Letters Patent, and as the highest appellate Courts of the Province, they had the "power to remove, and to try and determine, as a Court of extraordinary original jurisdiction any suit . . . . Whether within or without the Bengal Division of the Presidency of the Fort William subject to its superintendence when the said High Court shall think proper to do so . . . . . " This jurisdiction is common to the Presidency High Courts and all the other High Courts, and it is described in the marginal note to the relevant clause in all the Letters Patent as the "extraordinary original civil jurisdiction". Thus, whilst all High Courts had, under their Letters Patent, the extraordinary original civil jurisdiction, the ordinary original civil jurisdiction was the prerogative only of the Presidency High Courts. This distinction was known to the Legislature when it enacted the Sind Courts Act, and I would further point out here that as Sind was then part of the Bombay Presidency, the Sind Courts Act was promulgated by t7e Bombay Government as the Bombay Act VII of 1926.
13. I now turn to the Sind Courts Act, 1926, and it is sufficient to observe here that it conferred on the Judicial Commissioner's Court civil and criminal appellate jurisdiction for the area of Sind. These were the jurisdic--tions of all the superior Courts, but, in addition, section 8 prescribed that this Court "shall be the highest civil Court of appeal and revision and the highest Court of criminal appeal and revision for Sind and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Sessions and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi." The jurisdiction thus conferred was on the pattern of the Presidency High Courts, the civil jurisdiction being the ordinary original civil jurisdiction within the meaning of section 2(4) of the Civil Procedure Code. Finally, I may point out that the Sind Chief Court was set up after the creation of the Province of Sind and as the successor to the Judicial Commissioner's Court, it inherited that Court's powers and jurisdiction under the Sind Courts Act, including the jurisdiction conferred under section 8.
14. The Sind Chief Court continued to exercise its ordinary original civil jurisdiction under section 8 until the creation of the Province of West Pakistan and on the creation of the Province of West Pakistan the Sind Chief Court becam1 tile Karachi Seat of the West Pakistan High Court and by virtue of clause 9 of the High Court of West Pakistan (Establishment) Order, 1955, the Letters Patent of the Lahore High Court became the Letters Patent of the West Pakistan High Court. I may pause to point out here that clause 10 of the Letters Patent of the Lahore High Court conferred a right of appeal to the High Court against judgments of Single Judges of the High Court, therefore, after the creation of the West Pakistan, appeals to the High Court against the judgments of Single Judges of the High Court were filed under this clause.
15. However, as the Letters Patent of the High Court did not confer on the Court any original civil jurisdiction, apart from special matters like succession and matrimonial affairs, the High Court of West Pakistan (Establishment) Order made a special provision for the Karachi Seat of the West Pakistan High Court. This was contained in clause 5 of the Order, which reads as follows: "5. Orieinal civil and criminal jurisdiction of the Bench at Karachi. Not withstanding anything in this Order or in any other law for the time; being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi, and the same criminal jurisdiction and powers of the Court of sessions for the sessions division of Karachi, as were exercise-able, immediately before the commencement of this Order, by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926 (Sind Act V1I of 1926): Provided that the Governor-General may by notification in the official Gazette direct that, as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercise- able by that Bench and as from that date that Bench shall cease to exercise that jurisdic--petition and powers."
The original civil jurisdiction thus conferred on the Karachi Seat em--powered it to hear and decide suits as a Court of the first instance. And it is to be noted that this jurisdiction was available only in the Karachi Seat of the West Pakistan High Court. Finally, on the dissolution of the Province of Wept Pakistan this Court was set up under the High Court (Establishment) Order, 1970. And as it inherited the jurisdiction exercised by the Karachi Seat of the West Pakistan High Court, it continued to exercise the "original civil jurisdiction for the civil district of Karachi". In this legislative back--ground, the words "original civil jurisdiction" had acquired a definite connotation, which was known to the Legislature, therefore I agree with Mr. Khalid Ishaque that these words must be given the same meaning in subsection (1) of section 3 of the said Act.
16. I may also point out here that the appeals before us have been preferred against judgments by which the constitutional petitions filed by the appellants were dismissed, but subsection (1) of section 3 of the said Act, on which the learned counsel for the appellants relied, confers a right of appeal oily against final decrees and orders. Now, decrees are prepared only in suits, and the Legislature was aware of the distinction between decrees and judgments, yet it conferred a right of appeal against decrees and final orders only. This is significant, and the learned counsel for the appellants could not contend that they had come in appeal against decrees or final orders. How-- ever, Mr. Akhtar Mahmood submitted that the construction proposed by him of the words "original civil jurisdiction" was supported by the judgments of the Supreme Court reported in Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1966 SC 276). Ahmad Khan v. The Chief Justice and the. Judges of the High Court of West Pakistan (PLD 1968 SC 171) and Hussain Bux v. Settlement Commissioner (PLD 1970 SC I). Therefore, I will now consider these autho--rities, and at the outset, I would point out that all the cases cited related to the Lahore Seat of the `Nest Pakistan High Court which had, under its Letters Patent, an extraordinary original civil jurisdiction but not the original civil jurisdiction conferred on the Karachi Seat of the High Court by clause 5 of the High Court of West Pakistan (Establishment) Order.
17. In Mumtaz Khan's case, the appellant Mumtaz Khan had filed a writ petition against an order of the Settlement Department, which was allowed by a learned Single Judge of the High Court, therefore the respon--dent had filed an appeal in the High Court under clause 10 of the Letters Patent of the High Court. And as that appeal was allowed by the Division Bench, the appellant Mumtaz Khan challenged the judgment of the Division Bench before their Lordships on the sole ground that the judgment in his favour by the learned Single Judge was not a judgment within the meaning of clause 10 of the Letters Patent and therefore the appeal filed before the Division Bench had not been competent. In rejecting this submission S. A. Rehman, J. (as he then was) observed at page 286: "In view of the above discussion we have reached the conclusion that an order passed by a Single Judge in writ jurisdiction pertaining to a civil matter, amounts to exercise of original jurisdiction within the contemplation of section 108 of the Government of India Act and would therefore be appeal-able as a judgment under clause 10 of the Letters Patent of the High Court."
Mr. Akhtar Mahmood submitted that the observations in this passage that a writ petition pertained to a civil matter and that a decision in it amounted to the exercise of the Court's original jurisdiction supported his submission that writs were decided in the exercise of the High Court's original jurisdiction. The argument is misconceived, and merely because a writ pertains to a civil matter and originates in the High Court, this would not mean that a writ is allowed or rejected in the exercise of a High Court's original civil jurisdiction, and the position is set at rest by the observations of S.A. Rehman, J. (as he then was) at page 284. After discussing the meaning of the word judgment, S. A. Rehman, J. (as he then was) observed: "The writ jurisdiction of the High Court of West Pakistan exercise-able under the Laws (Continuance in Force) Order, 1958, is certainly not synonymous with the technically described "ordinary original civil jurisdiction" to try suits arising within certain territorial limits, such as is enjoyed by the Karachi Bench of the High Court. But it can be described as "original jurisdiction" as contrasted with "appellate jurisdiction" generally, and these are the two categories of jurisdictions mentioned in section 108 of the Government of India Act."
18. Mr. Akhtar Mahmood then submitted that their Lordships had taken a contrary view in Hussain Bux's case. The question there was whether the West Pakistan High Court was competent to entertain a review application against a judgment or order given by it in the exercise of its constitutional jurisdiction. The facts were that as the constitutional petition filed by the appellant had been dismissed by the High Court, he had filed a review application which was dismissed on the short ground that the Court had no power to review the orders passed by it in the exercise of its---constitutional jurisdiction. The view thus taken was challenged by the appellant in the Supreme Court on the ground that as constitutional petitions were civil proceedings in the High Court, the provisions of the Civil Procedure Code were applicable to them, and therefore the High Court had erred in. Holding that it had no power to review its own decisions. Thus, the only question before their Lordships was whether the provisions of the Civil Procedure Code were applicable to constitutional petitions. M. R. Khan, J. (as he then was), who delivered the judgment of the Court, referred to the-- earlier judgments of the Court in Mumtaz Khan's case and Ahmad Khan's case, and observed with reference to Ahmad Khan's case : "In the second case the jurisdiction under Article 98 of the Constitution was held to be a constitutional jurisdiction of an original kind. The writ jurisdiction under the said Article, in any event, is an original jurisdiction. The question then arises as to whether the provisions of the Code of Civil Procedure other, than the provisions expressly excepted shall apply in the exercise of the writ jurisdiction by the High Court under the said Article."
Then, after examining the relevant provisions of the Civil Procedure Code and in view of section 117 of the Code, M. R. Khan, J. Allowed the appeal. He observed at page 9 "As the High Court has been found to have power under` clause (b) of section 114 of the Code of Civil Procedure to review an order, made in its writ jurisdiction in a civil matter, the appeal succeeds." In my humble opinion, this is the true ratio of the case, but Mr. Akhtar Mahmood referred us to the following observations at page 7: "A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and' section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable."
Learned counsel relied on the words "the High Court's original civil jurisdiction" in this passage, but in my humble opinion, these words had reference to the narrow question for consideration before their Lordships, which was whether it could be said that a constitutional petition was an original matter of a civil nature in the sense of having originated in the High Court within the meaning of section 114 of the Civil Procedure Code. It is also not irrelevant to mention here that the validity of the view taken by their Lordships in Ahmad Khan's case was not even questioned, therefore, in my humble opinion, the passage relied upon by Mr. Akhtar Mahmood does not help his submission, and on the contrary, the observation of Cornelius, C. J. In Ahmad Khan's case are fatal to his submission.
19. Mr. Akhtar Mahmood's only other submission was that even if subsection (1) of section 3 of the said Act conferred a right of appeal only with regard to suits, it did not expressly take away a right of appeal in other cases, therefore this was not sufficient to divest the appellants of their right of appeal against the judgments by which their constitutional petitions had been dismissed. The submission implies that the appellants had acquired a vested right to an appeal as soon as they had filed their constitutional petitions. Now, even if it is assumed that this submission is correct, the Legislature, which had conferred the alleged right of appeal, was competent to take it away, and, as that seems so plain from the statute, Mr. Akhtar Mahmood's further submission was that a right of appeal, being a vested right, could only be taken away by express provision, and as the said Act did not contain any such express provision, the appellants had a right to prosecute their appeal.
Reliance for this proposition was placed on the judgment of the Judicial Committee in Colonial Sugar Refining Company v. Irving ((1905) A C 369) and several other cases in which this authority was followed. But in the Colonial Sugar Refining Company's case, Lord Macnaghten, who deli-- vered the judgment of the Board only observed "that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." This judgment was again considered by the Judicial Committee in Delhi Cloth & General Mills Co. v. Income-tax Commissioner (AIR 1927 P C 2112), and the Judicial Committee observed at page 244: "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving, where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." This judgment was followed by the Federal Court in Muhammad Ishaque v. The State (PLD 1956 SC (Pak.) 256), therefore it is too late in the day to contend that a right of appeal cannot be taken away by necessary intendment and in this view of the matter, the only question is whether the right of appeal of the appellants has been taken away by necessary implication under the said Act.
20. Now, the right of appeal claimed by Mr. Akhtar Mahmood was the right conferred under clause 10 of the Letters Patent, but as I pointed out in the first paragraph, clause 10 was omitted from the Letters Patent by the first 'Ordinance, .And this means that the jurisdiction under which we could have entertained here appeals has been abolished. That being so, I agree with Mr. Khalid Ishaque that there could hardly be a clearer case of the abolition of a right of appeal by necessary intendment, Additionally, as I showed earlier, the first Ordinance had expressly abolished all rights of appeal to the High Court against judgments of Single Judges of the High Court with effect from 14th April 1972, and admittedly none of the appeals before its had been filed by this date It is true however that the amending Ordinance substituted the first Ordinance with effect from 14th April 1972, but it only saved an appeal "which was pending before the commencement of this Ordinance". Finally, the said Act repealed the amending Ordinance and was "deemed to have taken effect on the 14th April 1972'. Now, subsection (4) of section 3 of the said Act only saves an "appeal under the provisions of the Letters Patent applicable to a High Court . . . . . Which was pending immediately before the commencement of this Ordinance". A right of appeal is different from an appeal which is pending, and an appeal can be said to be pending only after it has been filed, therefore it is clear that the Legislature intended to save only those appeals under clause 10 of the Letters Patent which had actually been filed in the High Courts before 14th April 972, and this necessarily means that except for the appeals expressly saved all other rights of appeal had been abolished.
21. No other argument was advanced. In my humble opinion, the appeals are not maintainable and should be dismissed in limine.
I thank the Attorney-General, the Advocate-General of Sind and Mr. Khalid Ishaque for their assistance.
TUFAIL ALI A. RAHMAN, C. J.---have had the advantage of reading, in advance, the judgment which my learned brother Patel, J., has delivered and I entirely agree with the conclusion as also the reasoning which had led to it.
MUHAMMAD HALEEM, J.-----I entirely agree not only with the conclusion but also with the reasons therefore in the judgment proposed to be delivered by my learned brother, Dorab Patel, J.
FAKHRUDDIN G. EBRAHIM, J.-I agree with my learned brother Dorab Patel, J., both as regards the conclusions reached by him and the reasoning leading to it.
Z. A. CHANNA, J.-I entirely agree with my learned brother, Patel, J., that the appeals before us are not maintainable and also with his reasons for coming to this conclusion. I also agree with him that the contention urged before us by Mr. Khalid Ishaq that the petitions filed under Article 98 of the 1962 Constitution and under the said Article read with the provisions of the Provisional Constitution Order, 1969, which were pending adjudication immediately before the coming into force of the Interim Constitution, abated on the enforcement of the said Constitution, is without substance.
However, as I entertain some doubts, and I say so with great respect, in regard to the proposition, which seems to have found favour with my learned brother, Patel, J., that the effect of Article 281 (1) of the Interim Constitution is to revive or resurrect the Proclamation of Martial Law of 25th March 1969, the Provisional Constitution Order and all other Martial Law Regulations and Martial Law orders passed or issued since the Proclamation of Martial Law of 25th March 1969, 1 would like to state my somewhat different reasons for not accepting the contention of Mr. Khalid Ishaq on this point.
The precise argument of Mr. Khalid Ishaq was that Article 295 of the Interim Constitution saved- only such pending proceedings as were taker under a law repealed or deemed to have been repealed by the Interim Con--stitution, but since the 1962 Constitution was abrogated by the Martial Law Proclamation of 25th March 1969, and as this Proclamation as well as the Provisional Constitution Order, 1969, were withdrawn by the Chief Martial Law Administrator and President by a Proclamation made on the 20th April, 1972, that is, on a date prior to the coming into force of the Interim; Constitution, neither the 1962 Constitution nor the Proclamation of Material Law or the Provisional Constitution Order, 1969, could legally be said to have been repealed by the Interim Constitution, and hence the provisions of Article 295 of the Interim Constitution cannot be said to be applicable to or save petitions filed under Article 98 of the 1962 Constitution or under the said Article read with the Provisional Constitution Order, 1969. Since this contention involves the interpretation of and the proper construction to be= placed on the provisions of Article 280, clauses
(2) and (3), Article 281, clause (1) and Article 295 of the Interim Constitution, it would be advanta-- geous to reproduce the same. They read as follows: "Article 280.-(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 commencingday, 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.
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, notwith- -standing any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
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 ;
(e) 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."
The twin requirements for the application of Article 295 of the Interim Constitution are that there should be a law, in which is included a President's Order, a Martial Law Regulation or a Martial Law Order, and such law, Regulation or Order should have been repealed, or deemed to have been repealed, by, under, or by virtue of the said Constitution. It, therefore, falls to be considered whether the Proclamation of Martial Law of 25th March 1969, and the Provisional Constitution Order, 1969, are or can be considered to be laws for the purposes of Article 295 of the Interim Constitution, and further whether they were repealed or are deemed to have been repealed by, under or by virtue of the said Constitution.
The nature, scope and extent of "law" has been examined at length by their Lordships of the Supreme Court in the case of Asma Mani v. Government of Punjab (PLD 1972 SC 139). Hamoodur Rehman, C. J., after examining the definitions of law given by different jurists, gave the following useful definition of the term "law" :- "So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. This in my view, brings in the notion both of legitimacy and efficacy."
Yaqub A.I, J., in the above case, observed that as "law" was not defined in the Constitution, it is for the Courts to lay down what "law" is. On a review of the different conceptions of "law", he came to the following view :-- "The preponderant view appears to be that law is not the will of a sovereign. Law is a body of principles called-rules or norms-- recognised and applied by the State in the administration of justice as rules recognised and acted upon by the Courts of justice. It must have the contents and form of law. It should contain one or more elements on which the different theories of law are based, and give expression to the will of the people whose conduct and behavior the law is going to regulate. The will of the people is nowadays often expressed through the medium of Legislature comprising of the chosen repre--sentatives of the people. The will of a single man howsoever laudable or sordid is a behest or a command, but is certainly not law as understood in juristic sense."
The Supreme Court in the above case has held that the principle enunciated in Dosso's case was unsustainable, that General Yahya Khan could not proclaim Martial Law or abrogate the Constitution, that he was a usurper and the military rule imposed by him was entirely without any legal foundation and that all Martial Law Regulations and Martial Law Orders issued by him, including the Proclamation of Martial Law, were void ab initio and of no legal effect. The Proclamation of Martial Law of 25th March 1969, and the Provisional Constitution Order, 1969, issued by him being void by reason of having been issued by a usurper and a legally incompetent authority, cannot be deemed to be laws, unless they were so declared by a legally competent authority. It is in this context that we have to consider the proper effect of Article 281(1) of the Interim Constitution. The said Article has validated, notwithstanding the fact that they were issued by a legally incompetent authority, all Proclamations. President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made as from the 25th of March 1969. This blanket provision in the Constitution, which was enacted by the duly elected representatives of th? People who were expressly charged with the duty of enacting the Country's Fundamental Law, thus gave validity and legitimacy to the various measures and laws described in or covered by Article 28 [(1) of the Interim Constitution, including the Proclama--petition of Martial Law of 25th March 1969, and the Provisional Constitution Order, 1969. Consequently, by the force of the Interim Constitution, we are to consider the said Proclamation and Order as having been validly made and cannot question their validity. To put it in different words, but for the aforesaid Constitutional provision, which legitimized them, the said Proclama--petition and Order, as all other Martial Law Orders and Regulations of Yahya Khan, would have been legally still-born.
The Martial Law Proclamation and the Provisional Constitution Order, 1969, also pass the test of "efficacy" which is the second requirement for "law" laid down by Hamoodur Rehman, C. J. The Provisional Constitution Order, 1969 and the Proclamation of Martial Law made far-reaching and fundamental changes in the organic law of the Country, dissolved the National and Provincial Assemblies, vitally affected the powers of Courts, including the superior Courts, gave supra- Constitutional powers to the Chief Martial Law Administrator and -provided for defining Martial Law offences and the setting up of Martial Law Courts. Their provisions, and it maybe pointed out that the two measures ware required to be read together, were not only capable of being enforced by the legal machinery but were followed and given effect to by the Courts on the principle, which has since been held to have been wrongly enunciated, in Dosso's case. I am, therefore, inclined to the view that at least after they were validated and legitimized by the Interim Constitution, the Proclamation of Martial Law of 25th March 1969, and the Provisional Constitution Order, 1969, could be considered as laws.
This brings me to the important point whether the above two measures could be said to have been repealed, or deemed to have been repealed by the Interim Constitution. Clause (2) of Article 280 of that Constitution specifically provides for the repeal of the Orders specified in the Sixth Schedule to the said Constitution. Neither the Proclamation of Martial Law nor the Provisional Constitution Order, however, were specified in the said Schedule. Consequently, they cannot, as I construe the said clause, be deemed to have been repealed by or under it. It is true that the said clause expressly states that the Proclamation of Martial Law is revoked, but since the requirement of Article 295 is "repeal", it is doubtful if "revocation" can be considered to have the same affect, so far as Article 295 of that Constitution is considered, as repeal. Since in the said clause, the word "revoked" as well as the word "repealed" have been used, the first with reference to the Proclamation of Martial Law and the second with reference to the Orders specified in the Sixth Schedule, it would appear that the framers of the Constitution used each of these words in a different sense and wanted different effect to be given to them. If the intention had been to treat the revocation of Proclama--petition of Martial Law as its repeal, this intention would have been made manifest by adding on explanation to clause (2) of Article 280 indicating that revocation of the Proclamation was to be treated as its repeal, or using only the word repeal in the said clause both in respect of the Proclamation and the Orders or by wing, in Article 295, the word "revoked" in addition to the word "repealed".
I am also doubtful if clause (3) of Article 280 of the Interim Constitution can be pressed into service in support of the argument that the Proclamation of Martial Law was repealed by the said Constitution. The said clause only repeals Martial Law Regulations and Martial Law Orders, except those specified in the Seventh Schedule to the Interim Constitution. Since both in Article 280 and in Article 281, separate mention has been made in respect of Proclamations, it would, in my humble opinion, not be in accordance with the spirit of that Constitution to treat the Proclamation as either a Martial Law Regulation or Martial Law Order. It may, however, be possible and even appropriate to treat the Provisional Constitution Order, 1969, as a Martial Law Order, for it was issued by General Yahya Khan in his capacity as Chief Martial Law Administrator and not as President.
The question, however, that arises and on which Mr. Khalid Ishaq founded his arguments, is whether the Provisional Constitution Order or the Proclamation of Martial Law could be said to have been respectively repealed or revoked by the Interim Constitution when they were withdrawn by the Proclamation of 20th April 1972, that is a day earlier than the coming into force of the said Constitution. In my opinion, the key to this question lies in Article 281 (1) of that Constitution. I have already referred to the fact that the Proclamation of 25th March 1969, and the Provisional Constitution Order, being by a legally incompetent authority, were invalid ab initio, but they were legitimized by the Interim Constitution. The Proclamation of 20th April 1972, though it was made by a person who had been duly elected representative of the people, itself was validated and legitimized by Article 281(1) of the Interim Constitution. The effect of this, as I view it, appears to be that the same provision of the Interim Constitution, while infusing legal life and legitimizing the Proclamation of Martial Law and the Provisional Constitutional Order, also brought about their legal end by legitimizing and validating the Proclamation by which they were withdrawn. As such, in my humble opinion, the Interim Constitution indirectly brought about the legal end, or to use the more common expression, repeal, of the aforesaid Order and the Proclamation first mentioned. It is in this context that the words "deemed to have been repealed" appearing in Article 295 of the Interim Constitution assume importance, and if my interpretation of Articles 281(1) and 295 of the said Constitution is correct, then it could be said that both the Proclamation of Martial Law and the Provisional Constitution Order, 1969, are deemed to have been repealed by virtue of the Interim Constitution. Mr. Khalid Ishaq readily agreed that if the above two measures could be said to be deemed to have been repealed by the Interim Constitution, any pending petitions which had been filed under Article 98 of the 1962 Constitution as well as those under the said Article read with the Provisional Constitution Order, 1969, would not abate and the proceedings in respect of them would continue by virtue of the provisions of Article 295 of the Interim Constitution and the corresponding Article, which is Article 264, of the Present Constitution. This is undoubtedly the correct legal position. I have endeavoured to show and expressed the opinion that the aforesaid measures are deemed to have been "repealed" by virtue of the Interim Constitution. The view thus that I take, in agreement with my learned brother, Patel J., is that petitions filed under Article 98 of 1962 Constitution or under the said Article read with the Provisional Constitution Order, which were pending when the Interim Constitution came into force, have not abated.
K. B. A.