' SHAFIUR RAHMAN, J.-- Leave to appeal was granted in two appeals, one having been filed by Pakistan through Secretary Cabinet Division and the N.-W.F.P through Chief Secretary and the other by some of the beneficiaries from Martial Law Order No,47 published in the Gazette Extraordinary of N.-W.F.P. On 1-2-1972, to examine whether the judgment of the Peshawar High Court dated 5th of September, 1981 allowing a Constitution Petition filed by the respondents Nos.1 to 5, was not in contravention of the law laid down by this Court in Fauji Foundation v. Hamimur Rahman (PLD 1983 SC 457).
2. On the 18th of January, 1972 Martial Law Administrator, Zone 'F', (N.-W.F.P.) Peshawar, promulgated Martial Law Order No, 47 as hereunder:-- "Under the orders of the Chief Martial Law Administrator and in exercise of the powers conferred by Martial Law Regulation No,1 as reconstituted by Martial Law Regulation No,64 and as amended from time to time, I, Hayat Muhammad Sherpao, Martial Law Administrator Zone 'F' hereby order that notwithstanding any title, right, claim or interest of any kind of any person, or any provision of any law for the time being in force, the shops specified in Coloum 2 of the Schedule to this order shall; with immediate effect, vest in and become the property of the respective occupants thereof, without payment of any consideration or compensation. Sd/- HAYAT MUHAMMAD SHERPAO Martial Law Administrator Zone 'F'.
' This Martial Law Order was published in the Gazette Extraordinary N.-W.F.P dated 1-2-1972. The Schedule appended to this Martial Law Order listed 237 shops all belonging to the writ petitioners/respondent Nos.1 to 5 of which, by Martial Law Order, the ownership stood transferred from Respondents Nos.1 to 5 to the occupants thereof. The vires of this Martial Law Order were challenged by a Constitution Petition on 15-6-1974. Numerous grounds were taken up for challenging the Martial Law Order. Some of these were that Martial Law Order did not qualify as the law, had not received validation under the Constitution of 1973 and was mala fide both in fact and in law, having been motivated by election rivalry wherein one of the writ petitioners was a Pakistan Muslim League candidate opposing the Pakistan Peoples Party candidate. It was specifically stated in the Affidavit filed in support of the Constitution petition as hereunder:- "During the campaign for that election, the Chairman of the Peoples Party addressed a public meeting at Par Kalpani in Hoti the home town of the petitioners, on February 25th, 1970. In the course of that speech, the Chairman said, indicating by wave of his hand, the rows of shops belonging to the petitioners (which were visible from the place of the meeting) that if the voters voted his party into power, he would, within one month of his taking charge, make those shops their property."
3. In the Constitution Petition reference to this promise and this ground was made in the following words:- Six newspaper cuttings relating to the election promise of the Chairman and a sketch of the shops showing the picking of those belonging to the petitioners, by passing over those belonging to others, is also appended."
4. The Cabinet Division, Government of Pakistan alone filed parawise comments to the Constitution Petition and generally pleaded that the action taken and the Martial Law Order issued was within the scope of the powers of the Martial Law Administrator of N.-W.F.P. Zone 'F.
5. The High Court at first examined the effect of Provisional Constitution Order, 1981 on the pending Constitution Petitions and held that such Petitions remained unaffected and could be disposed of on merits. Thereafter, the High Court proceeded to examine the merits of the Constitution Petition and particularly the election promise made before a crowd, and concluded as hereunder:- "In that very speech Mr. Bhutto is stated to have waived his hands and promised that if he came into power, all the shops belonging to the petitioner's family would be taken from them and handed over within one month to the occupants. The learned counsel urged that in order to satisfy his ego and the so-called promise, the impugned publication was issued exactly by the end of the month. It was pointed out that in spite of the fact that there were shops of other people also in the same bazar, the owners thereof were not touched and only the petitioners' shops were confiscated.
In this respect reports from the newspapers have been filed. None of the respondents specifically denied the allegations and in fact, except the Federal Government, no written statement was filed either by the Provincial Government or by the beneficiaries of the publication. We are, therefore, inclined to agree with the learned counsel for the petitioners that such a speech was made and Mr. Bhutto wanted to give effect to his promise when he directed the Zonal Martial Law Administrator to take over the shops of the petitioners and give them to the occupants thereof."
' On the basis of this finding of fact, the High Court, in the impugned judgment, recorded the following conclusions:-- "(i) Even if malice in fact is not established, the action is clearly malicious in law.
(ii) In view of the above fact, we therefore hold that the impugned publication being mala fide on fact as well as in law is void and of no legal effect."
6. As regards the other legal question arising in the case, namely, the protection to such Martial Law Orders and their validation granted by the Constitution, the High Court recorded the following findings:-- "(i) Since the impugned publication, in our opinion, is not authorised by any legislative enactment, it was never validated and, therefore, the petitioner cannot be considered to have been divested of the disputed property. Even if the impugned publication is considered to be a law made by the Chief Martial Law Administrator and published under his authority by the Zonal Martial Law Administrator, it is not a law which the legislature even intended to validate. Protection extends only to the legislative measures and the legislative measures are those laws which were made by a competent authority. The Chief Martial Law Administrator in our opinion, could not make a law of the nature which has been captioned as "Martial Law Order No,47". This publication offends Article 2 of the 1962 Constitution and was, therefore, utltra vires ab initio because the Chief Martial Law Administrator had no jurisdiction to enact a law depriving the individuals of their property without public purpose and without compensation and giving the same to other persons.
(ii) In no civilized system the property of an individual can be taken over and given to another person. If any law is intended for that purpose that will not be valid even if it has the Constitutional protection.
(iii) Again if the impugned publication is a legislation, it is an immoral law, and as such, cannot be protected.
(iv) The impugned publication besides being bad law or no law, is a sentence or punishment which is beyond the jurisdiction of a legislative body."
' On these findings, the High Court granted the writ petitioners/respondents Nos.1 to 5 the declaration that the Martial Law Order No,47 was void and of no legal effect.
7. As noted in the leave granting order, the appellants have heavily relied on the judgment of this Court in the case of Fauji Foundation (PLD 1983 S.C. 457), particularly the following conclusions of law contained therein:- "(i) In conclusion and for all the reasons hereinbefore given, I am of the view that neither mala fides has any nexus with the legislative power nor there is any distinction between an Act and a legislative measure promulgated by an individual in whom the power is reposed.
(ii) Clearly, therefore, the scope of judicial review is confined to the enforcement of the Constitution as supreme law. Aside from the inherent prerogative to interpret the Constitution, its purpose is corrective or directory, and extends to determining the legality of an administrative action and in relation thereto the constitutionality of the legislation. It, however, does not extend to prying into the affairs of the Legislature. This exertion of power in the garb of judicial review can be equated with that exercised by the English Courts over Administrative actions with the singular distinction that as the Parliament is sovereign, the English Courts feel themselves bound by the legislation and are only concerned with its enforcement. In this background, as it is, an identical question had arisen before the English Courts as to whether the legislative motives can be enquired into, which I consider in substance to be a political question.
(iii) Validation was given by a body recognized as competent to give to the Constitution force of law, and it was, therefore, that all the Martial Law Regulations and Martial Law Orders were valid as they were adopted as constituents of the National Legal Order irrespective of any constitutional or other defect. Accordingly, while construing this Article its purport cannot be whittled down by interpreting it in a way so as to make it ineffective. '
(iv) I fail to see how the impugned legislative instrument can be tested on the criterion of morality in law as there is no such criterion for testing the positive law which is a formal pronouncement of the will of competent law-giver. In the absence of any constraint it is not imperative that a law "must in order to qualify as law also be based on reason or morality"-- (F.BAli's case)." -
8. On the basis of these four conclusions recorded in Fauji Foundation's case (PLD 1983 SC 457), the contention of the appellants is that it was not open at all to the High Court either to question the motives of the law-maker or to doubt the extent of validation or to test law on the ground of morality and reasonableness.
9. Mr.. S.M. Zafar, Senior Advocate, the learned counsel for the respondent No,1 on the other hand contended that is time that legislation made by an individual not under the control of the representative institution should be tested on the ground of mala fides and the immunity available to democratically accountable head of the State promulgating such laws in the form of Ordinances or decrees should not be extended to him. To that extent the motive should be open to examination by the judiciary.
' Secondly, it was contended that even the Martial Law Orders and Regulations have a system of their own which has been explained in some detail in Muhammad Afzal v. The Commissioner, Lahore Division and the Estate Officer, Lahore Improvement Trust (PLD 1963 SC 401, at 410). Martial Law Order No, 47 does not fit it within that scheme of Martial Law Hierarchy.
' Thirdly, it was contended that Martial Law Order No,47 amounts to a legislative judgment i.e,, condemning a person and his property without any adjudication and without giving any reason.
Even if it is taken to be an executive order, it cannot be saved under the validation clause for it does not qualify as law and as a subordinate legislative instrument, it encroaches on the field of judiciary and is malicious in law.
' Finally, it was contended by the learned counsel for the respondent No,1 that Martial Law Order No,47 does not qualify as a law and amounts to a robbery. He has in his written arguments supported this as hereunder:- "Late Mr. Zulfiqar Ali Bhutto in his own private writing "If I am assassinated" made a comment on such like arbitrary and despotic order and proceeded to call it a robbery. He said "In a Martial Law everything can be over before you can count three" and again the illegal and forcible seizure of the people's foundation together with the printing press and Hilal-e-Pakistan is theft. It requires the amputation of both hands of the regime according to its own standards."
10. There are three reasons why we would not like to review on law points the decision given in the case of Fauji Foundation (PLD 1983 SC 457).
Firstly, a Bench of five Judges already considered the question of review of that judgment and declined it in Shamimur Rahman v. Fauji Foundation, Rawalpindi and another (1992 SCMR 1496).
The arguments then addressed with regard to the inquiry into the motives of the law-maker are the same which are addressed in the matter before us now.
Secondly, where allegations of mala fide of fact are involved or alleged, it is necessary that the parties against whom such mala fide of fact is ,alleged must be impleaded as a party so that it has occasion to meet the allegation. This is notwithstanding the constitutional protection enjoyed by such functionaries under Article 248 of the Constitution vide Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092). The Martial Law Order No,47 was issued by Hayat Muhammad Sherpao (Martial Law Administrator Zone 'F') under the orders of the Chief Martial Law Administrator on 18-1-1972. The Constitution Petition was instituted on 20-6-1974 when both these gentlemen were available for impleadment.
Thirdly, and this is more important, the only mala fide of fact alleged is that one of the writ petitioners was a Pakistan Muslim League candidate and opposing a Pakistan Peoples' Party candidate in the Elections that were held in 1971. Such a rivalry is neither personal, nor specific and even if it existed, it by itself could not account for mala fide of fact. In De-Smith Judicial Review (4th edition) at page 251 the following comments are relevant to the point under consideration:-- "The common-law rules do not apply to the legislative process. 'A colonial Governor may validly assent in the Queen's name to a Bill indemnifying him against the legal consequences of his own conduct. This is perhaps an extreme case. But ordinary members of legislative bodies are entitled, and sometimes expected to show political bias. They ought not to show personal bias, or to participate in deliberations on a matter in respect of which they have a private pecuniary interest, but their participation in such circumstances will not in itself affect the validity of a legislative instrument."
11. There are again three reasons for not interfering with the judgment of the High Court and the relief granted by it.
Firstly, it appears from the material on record that the only cause for such an action was the "off the cough" declaration made at an election meeting promising such an order if the party was put in power by the electorate. In the context of exercise of statutory administrative power and discretion, the scope and effect of an election promise or manifesto was taken up for detailed consideration in Bromley London Borough Council v. Greater London Council and another (1982) 2 Weekly Law Report 62 and Lord Denning M.R. In Court of Appeal on appeal filed by Regina made the following comments on it:- "A manifesto issued by a political party --- in order to get vote --- is not to be taken as gospel. It is not to be regarded as a bond, signed, sealed and delivered. It may contain --- and often does contain --- promise or proposals that are quite unworkable or impossible of attainment It seems to me that no party can or should claim a mandate and commitment for any one item in a long manifesto. When the party gets into power, it should consider any proposal or promise afresh --- on its merits --- without any feeling of being obliged to honour it or being committed to it. It should then consider what is best to do in the circumstances of the case and to do it if it is practicable and fair Even if they were within their statutory powers, they were distorted by giving undue weight to the manifesto and by the arbitrary and unfair nature of the decision."
' Another learned Judge Watkins observed on the same subject in the case, as hereunder:-- "Those who come newly to govern people and who act in haste in wielding power to which they are unaccustomed would do well to heed the words of Gladstone. He knew a great deal about power, and in 1890 he said it: "The true test of a man, the test of a class, the true test of a people is power. It is when power is given into their hands that the trial comes."."
' The compulsive force of an election promise, the very basis of the impugned Martial Law Order promulgated on the direction of-Chief Martial Law Administrator within a month of assuming the office was totally misconceived.
Secondly, the impugned Martial Law Order does not find a place within the scope, norms and hierarchy of even the Martial Law dispensations. In Province of East Pakistan and the Secretary, Finance and Revenue (Revenue) Department v. Md. Mehdi Ali Khan (PLD 1959 SC 387 at page 439) one of the learned Judges explained the scope in the following words:-- "It is not at all common to find Martial Rule being introduced over a whole country in circumstances of general peace. Such a condition approximates more closely to the application of Martial Law to an occupied territory than to the like application over a disturbed area of municipal territory. In an occupied territory a military government replaces the suspended sovereignty, and Martial Rule replaces the previous governmental agencies. But it does not follow that such rule is purely arbitrary as to power or uncontrolled by principle or unrestricted as to method. Like any other form of rule over human beings, it is obliged by the circumstances to adopt itself to the circumstances in order to gain its ends, and one such circumstance of the utmost importance is the settled habits and sentiments of the people. One of the definitions of a Constitution is. ' that body of rules and maxims in accordance with which the powers of Sovereignty are habitually exercised." ' and to such habitual exercise, it is axiomatic that the people become readily accustomed. It is always of importance to a new regime to cause the minimum disturbance in the lives of the ordinary citizens consistent with the execution of the purposes underlying its inception. Thus it is conceivable that through public exigency a peaceful country may be placed under Martial Law for such a purpose as, say, the reconstitution in the light of past experience and the present and future requirements of the country at large, of the mode of exercise of the superior authority of the State through the system of popular representation. In such a case there may be no general necessity for the new regime to alter the processes of Government in their impact on the lives of the ordinary citizens (excepting, of course, the machinery of popular representation). But it is a matter of general and indeed supreme necessity that the paramount authority of the new sovereignty should be established and maintained, and the first step to this end must necessarily be the demolition of the foundation upon which the previous and superseded sovereignty was based which was, in this case, the Constitution of 1956. In other words, while abrogation of a Constitution to which the people were accustomed and under which they were living peacefully might become a matter of necessity, it is not essential that the provisions of that Constitution so far as they operate upon the lives of ordinary citizens, through the machinery of Government at all levels below the highest level, should be affected beyond the absolute necessity."
' In the case of Muhammad Afzal (PLD 1963 SC 401) the normative and hierarchical arrangement existing in Martial Law regimes was explained in the following words:-- "The Martial Law proclaimed chose a system of Government which was not to be a negation of law but an orderly system following a pattern of its own selection not dissimilar to the pattern of civil administration prevailing in the country. The terminology adopted, therefore, to ,,describe its legislative measures was not without significance."
Thirdly, the impugned Martial Law Qrder cannot qualify even as a legislative judgment. It does not adjudicate. It does not vindicate. It punishes a person by transferring his property to others without any reason or occasion for it. It is an executive fiat of the most arbitrary, unreasonable and ruthless character. It cannot and does not qualify as a law. A Treatise on the Constitutional Limitations by Thomas M. Cooley (Eighth Edition -- Volume II) at page 736 contains the following observation with respect to such dispensations:- "Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case: "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land."
' The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they "proceed upon inquiry" and "render judgment only after trial". It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. "The words 'by the law of the land', as used in the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two houses: 'You shall be vested with the legislative power of the State but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words, you shall not do the wrong unless you choose to do it'." ("Due process of Law" does not mean "the general body of the law, common and statute, as it was at the time the Constitution took effect; for that would deny to the legislature the power to change or amend the law in any particular. Neither, on the other hand, does 'the law of the land' or 'due process of law' mean anything which the legislature may see fit to declare to be such; for there are certain fundamental rights, which our system of jurisprudence has always recognized, which not even the legislature can disregard in proceedings by which a person is deprived of life, liberty or property."
The validation by the Constitution (Article 269) covers legislative measures of all types, proclamations, Presidential Orders etc. Etc., but what could neither be a legislative measure nor a Martial Law Order or Regulation does not stand validated. For that reason, such an instrument as happens to be Martial Law Order No,47, it does not stand Constitutionally validated.
' Both the appeals are, therefore, dismissed with costs.