1. ' This petition has been filed by negum Parveen Malik, under Article 199 (1) (b) (1) of the Constitution of Islamic Republic of Pakistan, 1973. She is wife of A. Rauf Malik, Proprietor, Peoples Publishing House, The Mall, Lahore. Through this petition, she has challenged the detention of her husband.
2. She has made a prayer in the petition that it be held that the custody of her husband was without lawful authority. A further prayer has been made that her husband be set at liberty.
2. For the disposal of this petition, it is necessary to trace out the history of Defence of Pakistan Ordinance, 1971 (Ordinance No, XXX of 1971).
3. Following proclamation was published in the Gazette of Pakistan, dated November 23, 1971 :- PROCLAMATION OF EMERGENCY Rawalpindi, the 23rd November 1971 ' No, 45/1/71-P & C.-Whereas the President is satisfied that a grave emergency exists in which Pakistan is threatened by external, aggression ; ' Now, therefore, in pursuance of the Proclamation of the 25th day of March 1969, read with the Provisional Constitution Order, and in exercise of all powers enabling him in that behalf, the President is pleased hereby to issue this Proclamation of Emergency."
4. ' The Defence of Pakistan Ordinance, 1971 (Ordinance No, XXX of 1971) was made by the President on 23rd November 1971, and published for general information. This Ordinance was enforced to provide for special measures to ensure the security, the public safety and interest and the defence of Pakistan, and for the trial of certain offences. President of Pakistan was satisfied that immediate legislation was necessary and the national interest of Pakistan in relation to the security of Pakistan required Central Legislation in the matter to meet the emergency on account of Pakistan being threatened by external aggression. The Defence of Pakistan Ordinance, 1971 hereinafter to be referred as Ordinance, came into force at once and extended to whole of Pakistan and applied to all citizens of Pakistan. The Central Government, under section 3 of the Ordinance, could, by Notification in the official Gazette, make such rules as appeared to it to be necessary or expedient for ensuring the security, the public safety and interests and the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community. The Central Government, under section 8 of the Ordinance could, for the whole or any part of Pakistan, constitute Special Tribunals which shall consist of three members appointed by the Central Government. Section 10 was in respect of the procedure by Special Tribunals. The Defence of Pakistan Rules were framed and published in the Gazette of Pakistan, dated 23rd November t971.
5. The Constitution of Islamic Republic of Pakistan was passed by the National Assembly on 10th April 1973, and authenticated by the Presi lent on 12th April 1973 Article 232 of the Constitution relates to the proclamation of emergency. Under this Article, "if the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency".
6. ' Under proviso of Article 232, the Federal Government is not authorized to assume to itself, or direct the Governor of the Province to assume to itself, any of the powers vested in or exercisable by a High Court or to suspend either in whole or in part of the operation of any provision of the Constitution relating to High Courts, although under Article 232 (2) (c), the Federal Government could by order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exerciseable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the Province.
7. ' The Proclamation of Emergency, under Article 232 (7) of the Constitution is to be laid before a joint sitting summoned by the President to meet within thirty days of the issue of proclamation. The proclamation issued under Article 232. (7) (a) ceases to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting.
8. The original Article 232 (7) (b) was as under- "may, by a resolution of a joint sitting, be continued in force for a period not exceeding six months at a time."
9. ' Article 232 (7) (b) has been amended by the Constitution (Third Amendment) Act, 1975 (Act XXII of 1975) and substituted as under s - "shall, subject to the provisions of paragraph (a) cease to be in force upon a resolution disapproving the proclamation being passed by the votes of the majority of the total membership of the two houses in joint sitting."
10. ' Article 233 of the Constitution deals with powers to suspend Fundamental Rights, etc. During the emergency period. A proclamation issued can be varied or revoked by a subsequent proclamation under Article 236 of the Constitution. The validity of any proclamation issued or order made cannot be called in question in any Court, but nothing has been mentioned in the Constitution that the continuance of emergency cannot be called into question in any Court. The order of Proclamation of Emergency and the Ordinance and Rules made thereunder have been saved under Article 280 of the Constitution. It is provided therein that-. "the Proclamation of Emergency issued on the twenty-third day of November, one thousand nine hundred and seventy-one, shall be deemed to be a Proclamation of Emergency issued under Article 232, and for the purposes of clause (7) and clause (8) thereof to have been issued on the commencing day, and any law, rule or order made or purporting to have been made in pursuance of that Proclamation shall be deemed to have been validly made."
11. ' The Proclamation of Emergency has not been revoked so far and is in force since 23rd November 1971, so is the Defence of Pakistan Ordinance and the Rules framed thereunder which are the creatures of the Proclamation of Emergency.
3. The relevant rules for the decision of this application are rules 42 and 49. Definitions of certain phrases including prejudicial acts have been given in rule 42. Prohibition of prejudicial acts, publication and communication have been made punishable under rule 49. Prior to the enforcement of Defence of Pakistan (Amendment) Ordinance, 1976 (Ordinance III of 1976. On the cases under the Defence of Pakistan Rules were tried in the ordinary criminal Courts. It was provided in Defence of Pakistan (Amendment) Ordinance, 1976, published in Gazette of Pakistan dated 14th January 1976. That- "where the Federal or a Provincial Government constitutes a Special Tribunal for any area, it shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), have exclusive jurisdiction to try all offences under any rule made under section 3 specified in the notification constituting the Tribunal which are committed within the local limits of the jurisdiction of the Tribunal."
12. ' The Special Tribunal was constituted by the Governor for the whole of Punjab and it was notified in the Gazette of Punjab, dated 6th February 1976. Certain rules including rule 49 were made triable exclusively by the Special Tribunal. I case under rule 42/49, efence of Pakistan Rules, was registered, on 19-6-1976, at Police Station, Old Anarkali, Lahore, against the petitioner and his co-accused Muhammad Sharif on the allegations that they had published a booklet known as "China's Policies, other side of the picture". A. Rauf Malik was the Publisher while Muhammad Sherif co-accused a Printer. The petitioner and his co-accused were arrested in the said case. An application, bearing Cr. Misc. No, 2382/5 of 1976, was filed in this Court, on 22-6-1976, under section 498, Cr. P. C. The petitioners were allowed interim bail, on 23-6-1976, till 7-7-1976, because the consistent view of this Court, which was later confirmed by the Supreme Count as reported in Zahur Illhi v. State (1) was, that this Court had the jurisdiction to grant bail to an accused person who is involved in a case under rule 49 of the Defence of Pakistan Rules. The interim bail was extended till 16-07-1976.
13. Defence of Pakistan (Second Amendment) Ordinance, 1976 (Ordinance XXIII of 1976) was enforced w. e. f. 9-7-1976. Section 13 of the Ordinance was substituted as under : "13. Appeals, etc.-(1) A person sentenced by a Special Tribunal after the fourteenth day of August 1974, shall have a right of appeal to the High Court within a period of a thirty days from the commencement of the Defence of Pakistan (Second Amendment) Ordinance, 1976; or the day on which the sentence is passed, whichever is the later.
14. ' Explanation.-In this section, ''High Court" means the High Court within whose jurisdiction the sentence has been or is passed.
(2) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Tribunal, so, however, that the powers exerciseable by the Provincial Government under that Chapter shall be exercised by the Federal Government."
15. ' Section 13-A pertaining to the bar of jurisdiction was also brought in. 14 would be of advantage to reproduce section 13-A :- "13-A. Bar of jurisdiction.-Save as provided in section 13 and notwithstanding the provisions of the Code, or of any other law for the time being in force, or anything having the force of law by whatever authority made or done, there shall be no appeal from any order or sentence of a Special Tribunal, and no Court shall have authority to revise such order or sentence, or to transfer any case from a Special Tribunal, or to order the suspension of execution of sentence or release on bail with or without sureties under section 426, 435, 491, 497, 498 or 561-A of the Code or any other provision of law, of any person being tried, or convicted, by a Special Tribunal, or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal."
16. ' When the bail petition filed by A. Rauf Malik and his co-accused Muhammad Sharif came up before this Court for hearing, the provisions of
(I) PLJ 1977 SC 147 section 13-A were brought to notice and argued at length by the learned counsel for the parties. It WAR held by this Court that since the proceedings were neither pending before the Special Tribunal nor the case was being tried by the Special Tribunal, the jurisdiction of this Court in the matter of grant of bail was not barred. It was also observed in the order that rule 210 of the Defence of Pakistan Rules had not been amended and the word "Court" still existed in rule 210 (b). Then came in the Defence of Pakistan (Third Amendment) Ordinance, 1976 (Ordinance XXXIX of 1976). It came into force on 28th July 1976, i,e, twelve days after the bail of A. Rauf Malik and his co-accused was confirmed by this Court. Section 13-A of Defence of Pakistan (Second Amendment) Ordinance, 1976, was substituted .As under :- "13-A. Bar of jurisdiction.-(1) Save as provided in section 13 and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatever authority made or done, or any judgment of any Court, there shall be no appeal from any order of a Special Tribunal, and no Court shall have authority to revise any order of sentence of the Special Tribunal, or to transfer any case from a Special Tribuual, or to order the suspension of execution of sentence or release on bail or on own hoed under section 426, 435, 439, 491, 497, 498 or 561-A of the Code or any other provision of law, of any person against whom a case exclusively triable by a Special Tribunal is registered at a Police Station, or who is being tried, or has been convicted, by a Special Tribunal, or have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal.
17. ' Explanation.-'Proceedings' includes all final or interim orders passed by the Special Tribunal in relation to a case exclusively triable by it, whether before or after the Special Tribunal has taken cognizance.
(2) Notwithstanding the provisions of the Code or of any other law for the time being in force, or of anything having the force of law by whatever authority made or done, or any judgment of any Court, the provisions of subsection (1) shall have effect. And shall be deemed always to have had effect, as if they formed part of this Ordinance on and from the twenty-third day of November 1971."
4. Notwithstanding the order of bail, A. Rauf Malik was arrested. Nazir Hussain, one of the co- accused, moved bail petition before the Special Tribunal He was allowed bail by the Special Tribunal on 4-8.1976, on the ground that the co-accused had been allowed bail by the High Court for the reason that Assistant Advocate-General was unable to point out any offensive portion of the booklet. A. Rauf Malik was taken into custody on 4-1-1977, by Old Anarkali Police under the orders of the Section Officer, as informed by the learned Assistant Advocate-General. He moved bail petition before the Special Tribunal, which was dismissed on 181-1-977. The Special Tribunal observed in the order that section; 13-A of the Defence of Pakistan (Second Amendment)
18. Ordinance, 1976, which was discussed by this Court at the time of grant of bail, has been substituted by section 13-A of the Defence of Pakistan (Third Amendment) Ordinance, 1976 and the substituted section 13-A had retrospective application. The bail petition was rejected on 18-1-1977, on the ground that the grant of bail was to be governed by provisions of rule 210 of the Defence of Pakistan Rules, which were almost reverse of the principles of grant of bail laid down in section 497, Cr. P. C. Strangely enough, eleven days later i,e, on 29-1-77, Muhammad Sharif co-accused was allowed bail. It would be pertinent to point out that A. Rauf Malik was the Publisher of the booklet while Muhammad Sharif co-accused Printer of Zee Shan Press, Gowaltnandi, Lahore. This petition has been filed to challenge the detention of A. Rauf Malik.
5. It was contended by the learned counsel for the petitioner that the provisions of section 13-A (1),
(2) of the Defence of Pakistan (Third Amendment) Ordinance, 1976, could not be made applicable to the decided matters, and if the intention had been to make the amendment applicable to a decided case, it would have been specifically mentioned that all the bail orders passed prior to the enforcement of the said Ordinance shall cease to have any effect. In support of his contention, he referred the Constitution (Fourth Amendment) Act, 1975 (Act LXXI of 1975) whereby Article 199 of the Constitution was amended and clause (1-A) was inserted after clause (4). In order to appreciate his view-point, I consider it proper to reproduce newly inserted clause (4-A) : "(4-A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have teen made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier."
19. ' It has been clearly mentioned in this clause that the order shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided or the interim order is withdrawn by the Court earlier. The Fourth Amendment came into force w. e. f. 25th November 1975. Corresponding amendment was made in Order XXXIX, C. P. C., through the Code of Civil Procedure (Amendment) Ordinance, 1975 (Ordinance XXXI of 1973). After rule 4 of Order XXXIX, C. P. C., rule 4-A has been inserted which is to the following effect :- "4-A. Injunction to cease to be in force after certain period. -An injunction granted by a Court in a suit which seeks to question the validity or legal effect of any order made, proceedings taken or act done by any authority or person, which has been made, taken or done, or purports to have been made, taken or done, under any law which is specified in Part 1 of the First Schedule to the Constitution or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court earlier.
20. ' Explanation.-In this rule, 'public revenues' includes the dues of any bank owned or controlled by the Federal Government or a Provincial Government."
21. ' It is clearly laid down in section 3 of the Code of Civil Procedure (Amendment) Ordinance, 1975 that "an injunction such as is referred to in rule 4-A of Order XXXIX in the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908) granted by the Court before the commencement of this Act, shall cease to have effect on the expiration of sixty days from such commencement, unless the case is finally decided or the injunction is discharged or set aside, by the Court earlier. The learned counsel further argued that the provisions of sections 497 and 498, Cr. P. C. Pertaining to the grant of bail, have not been amended as was done in the C. P. C. And if the intention had been to oust the jurisdiction of the High Court, the provisions of said two sections would have been amended. In support of the arguments that the amendment did not apply to the decided cases, the learned counsel cited Income-tax Officer, Central Circle II, Karachi and another v. Cement Agencies Ltd. (1) and Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (2). A case decided by Privy Council titled John Lemrn v. Thomas Alexander Mitchell (3) was also referred where the principle laid down was, that the effect of the judgment which in the "absence of appeal (operates as) a final determination of the rights of the parties" rests on the general principle that a man is not to be vexed twice for the tame cause of action unless it is "excluded by the Legislature in explicit and unmistakable terms". The learned counsel for the respondents argued that on account of provisions of section 13-A (2) of the Defence of Pakistan (Third Amendment) Ordinance, 1976, the order of bail passed by this Court on 16-7-1976, ceased to have any effect as the amendment had been made applicable from 23rd November 1971, and the police under the orders of the Section Officer was competent to cause his arrest. The learned counsel referred Burmah Oil Co. v. Lord Advocate at page 238 of the Constitutional and Administrative Law by O. Hood Phillips (Fifth Edition).
6. A. Rauf Malik was arrested in a case registered under rule 42/49 of the Defence of Pakistan Rules, t971. The best question arises as to whether this Court, under Article 199 of the Constitution of the Islamic Republic of Pakistan, can pass an order that the custody of a person under rule 42/49 of the Defence of Pakistan Rules is without lawful authority. It is laid down in Article 199 (1) (b) (i) that "subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any person, make an order directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy Itself that he is not being held in custody without lawful authority or in an unlawful manner."
22. Under this Article, this Court is competent to give a direction that a person in custody within the territorial jurisdiction of the Court, be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. Under proviso to Article 232 (2) of the Constitution, the Federal Government is not authorised to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exerciseable by a High Court, or to suspend eithe in whole or in part the operation of any provision of the Constitution relating to High Courts. Even during the emergency, the powers vested in or exerciseable by High Court could neither be assumed nor suspended either in whole or in part by the Federal Government or by the Governor of Province under the direction of the Federal Government. It is given in a unambiguous language, under the preamble of the Constitution, that th Independence of the Judiciary shall be fully secured. The powers of this Court, under Article 199
(1) (b) (i), remain unfettered. Law never encourages
(1) P D 1969 SC 3'22 (2) P D 1974 SC 180
(3) (1912) A C 400 nor gives protection to illegal acts and a remedy is always provided for such illegal actions. It is not acceptable that once a case is registered under rule 49 of the Defence of Pakistan Rules, this Court is not competent to look into the matter as to whether the provisions of rule 49 of the Defence of Pakistan Rules are attracted or not. In order to explaia the legal position, I would quote an instance
(i) A goes to the house of B and commits theft of certain articles goes to the Police Station and Police Officer C registers the case against under rule 49 of the Defence of Pakistan Rules due to inadvertence/lack of knowledge/maliciously and causes his arrest.
23. ' In this case it cannot be said that since the case was registered under rule 49, D. P. R., the jurisdiction of this Court was barred on account of the enforcement of Defence of Pakistan (Third Amendment) Ordinance, 1976. In such a situation, this Court is competent to hold that A was being held in custody without lawful authority.
24. The allegations levelled against an accused person can be looked into to find out as to whether the case has been registered under the proper offence. By merely registering a case under rule 49, D P.
25. R., the jurisdiction of this Court is not ousted. This Court is equally competent to look into the mala fide also.
7. The next point for decision is as to whether the order granting bait to A. Rauf Malik, passed on 6.7- 1976, ceased to have any effect on account of Defence of Pakistan (Third Amendment) Ordinance, 1976. When a right of a person is to he taken away, that can be taken away only by express legislation and not by implication. It is given under section 13-A of the Defence of Pakistan (Third Amendment) Ordinance, 1976 that save as provided in section 13 and notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatever authority made or done, or any judgment of any Court, there shall be no appeal from any order of a Special"Tribunal. This part of section 13-A relates to the filing of the appeal. Thereafter, it is given that "no Court shall have authority to revise any order or sentence of a Special Tribunal or to transfer any case from the Special Tribunal or to order the suspension of execution of sentence or release on bail under section 426, 435, 439, 491, 497, 498 or 561-A of the Code or any other provisions of law, of any person against whom a case exclusively triable by a Special Tribunal is registered at a Police Station or who is being tried, or has been convicted, by a Special Tribunal, or have any jurisdiction of any kind in respect of any proceeding of a Special Tribunal". Word "proceedings" has been explained to include all final or interim orders passed by the Special Tribunal in relation to a case exclusively triable by it, whether before or after the Special Tribunal as taken cognizance. According to subsection (2) of section 13-A of the said Ordinance, the provisions of subsection (1) shall have effect and shall be deemed always to have had effect as if they form part of this Ordinance on and from 23rd day of November 1971. Subsection (2) of section 13-A was brought in to be made applicable to the pending cases/matters and not the decided ones. To make it clear, I would like to quote an example.
26. ' A case is registered against X under rule 49, Defence of Pakistan Rules, on 1st May 1976. I is arrested on 1st June 1976. A petition for bail is filed on behalf of land it remain undecided till 1st of August 1976. By the Third Amendment of Defence of Pakistan Ordinance, the Court will not have jitrisdiction to grant bail under sections 497, 498, Cr. P. C. Similarly, if a petition for quashing the proceedings is filed in High Court under section 561-A, Cr. P. C. In respect of a case, which was registered under rule 49, D. P. R. And the petition remains pending till the enforcement of Defence of Pakistan (Third Amendment) Ordinance, 1976, the jurisdiction of this Court to pass an order under section 561-A, Cr.
27. P. C. Stool barred due to the said Ordinance. If the intention of the Legislature had been to undo the decided cases/ matters, it would have been specifically mentioned in subsection (2) of section 13- A of Defence of Pakistan (Third Amendment) Ordinance, 1976, that the cases decided or orders passed shall cease to have any effect as was incorporated in Constitution (Fourth Amendment)
28. Act of 1975. Constitution (Fifth Amendment) Act, 1976 OAR of 1976) came into force on 15th September 1976. Article 199 of the Constitution was amended. Clause (3-A) was substituted as under I- "(3-A) A High Court shall not make under this Articie-
(a) an order prohibiting the making, or suspending the operation, of an order for the detention of any person under any law providing for preventive detention ;
(b) an order for the release on bail of any person detained under any law providing for preventive detention ;
(c) an order for the release on bail, or an crder suspending the operation of au order for the custody, of any person against whom a report or complaint has been made before any Court or Tribunal, or against whom a case has been registered at any Police Station, in respect of an offence, or who has been convicted by any Court or Tribunal ;
(d) an order prohibiting the registration of a case at a Police Station, or the snaking of a report or complaint before any Court or Tribunal, in respect of an offence ; or
(e) any other interim order in respect of any person referred to in any of the preceding paragraphs.
29. (3-B) Every such order as is referred to in clause (3-A) made at any time after the commencement of the Constitution (Fourth Amendment) Act, 1975, shall cease to have effect and all applications for the making of any such order that may be pending before any High Court shall abate.
30. (3-C) The provisions of clauses (3-A) and (3-B) shall also apply to the disposal of an application in a petition for leave to appeal, or in an appeal, from an order such as is referred to in the said clause (3-A) that may be pending before the Supreme Court immediately before the commencement of the Constitution (Fifth Amendment) Act, 1976 ' It has been laid down in an unambiguous language in clause (3-B) that every such order as is referred to in clause (3-A) made at any time after the commencement of the Constitution (Fourth Amendment) Act, 1975, shall cease to have effect and all applications for the making of any such order that may be pending before any High Court, shall abate.. Here the intention of the Legislature was that every order referred in clause (3-A) shall cease to have effect and all applications for the making of any such order pending before any High Court shall abate. If the intention of the Legislature had been that all orders passed under sections 497, 498, Cr. P. C., shall cease to E have effect, it would have been mentioned clearly in subsection (2) of section 13-A of Defence of Pakistan (Third Amendment) Ordinance, 1976, that such order shall cease to have any effect from 23rd day of November 1971. From the words "the provisions of subsection (1) shall have effect, and shall be deemed always to have had effect, as if they form part of this Ordinance on and from the 23rd day of November 1976", it cannot be presumed that the intention of the Legislature was that the orders already passed under sections 497, 498, Cr. P. C. Shall cease to have any effect. These words were applicable to the matters which were pending prior to the enforcement of Defence of Pakistan (Third Amendment) Ordinance, 1976.
31. ' For the reasons stated above, I hold that the order whereby A. Raul Malik was allowed bail by this Court, on 16-7-1976. Was very much in the field and it did not cease to exist on account of Defence of Pakistan (Third Amendment) Ordinance, 1976. The arrest of A. Rauf Malik is without lawful authority. He shall be released from the jail forthwith unless required to be detained in any other case. The petition is accepted.