' ASLANT RIAZ HUSSAIN, C. J.-We have heard the learned counsel for the parties at length inter alia, on the point as to whether or not the provisions of the Constitution (7th Amendment) Act, 1977, temporarily oust, curtail or suspend the jurisdiction of the High Court under Article 199 of the Constitution and whether or not the present exercise of the armed forces amounts to imposition of Martial Law. We propose to give our finding on the points by the following short order, the reasons whereof shalt be given later.
2. By the Constitution (7th Amendment) Act, the Parliament has amended Article 245 of the Constitution, which reads as follows :- "245.-(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.
2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court.
(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245: Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceedings pending immediately before the day on which the Armed Forces start acting in aid of civil power,
(4) Any proceeding in relation to any area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting."
3. On examining clause (2) we have reached the conclusion that the validity of a direction issued by the Federal Government under clause;' (1) of Article 245 cannot be called in question.
4. But the position with regard to clause (3) is somewhat different. There the ouster of jurisdiction is not absolute but depends upon existence B of certain conditions precedent. One of the relevant pre-conditions prescribed by this clause for ousting the jurisdiction of this Court under Article 199, in respect of certain areas, is that the Armed Forces of Pakistan should. For the time being, be acting there in aid of civil power in pursuance of a direction under Article 245. If this pre-condition is not fulfilled, the jurisdiction of this Court under Article 199 cannot be deemed to have been ousted. On this aspect of the matter it was submitted by the learned Attorney-General himself that under clause (3) of Article 245, there is not a naked ouster of the jurisdiction of this Court but the same is dependent on the presence of the following three jurisdictional facts :- 1st t Whether there is a direction of the Federal Government under Article 245 ; 2nd : Whether Army has started acting in aid of the civil power in pursuance of that direction ; and 3rd : Whether the area where they are so acting is specified and identified.
' He submitted that if these conditions are fulfilled, the Court's jurisdiction is ousted completely.
Relying on Anna Jilani's case (1) he also submitted that there is a distinct difference between 'Jurisdiction' and 'Judicial power'. He said that while jurisdiction can be conferred or taken away by the Constitution or law, 'Judicial Power' is inherent in the Court and cannot be taken away. He frankly conceded that it is the Courts, and the Courts alone, which have the judicial power to examine whether the three conditions
(1) PLD 1972 SC 139 or jurisdictional facts mentioned above, have in fact, been fulfilled and thus determine whether the jurisdiction of High Court has been ousted, curtailed or suspended by the Constitution (7th Amendment) Act, 1077. In support of the contention that the Armed Forces are acting in aid of the civil power, he produced certain directions issued by the military authorities showing that they were acting as such. The learned Attorney-General submitted further that under Article 245, the Armed Forces are required to act in aid of the civil power, subject to law. He submitted that the intention of the framers of the Constitution was that the Armed Forces while acting in aid of the civil power should not act arbitrarily or capriciously but should act in accordance with the limits placed on them by some law on the subject. These laws are, inter alia, Act XI of 1977, whereby the Defence of Pakistan Ordinance is amended, and Act X of 1977, whereby the Pakistan Army Act, 1952 has been amended. A large number of powers have also been conferred upon the Army through a notification whereby the powers of the Federal Government under the Defence of Pakistan Rules have been delegated to it,
5. We have carefully considered the aforementioned contentions. We are inclined to agree with the view that the expression "subject to law" occurring in clause (1) of Article 245, refers to 'Laws' framed for ensuring that the Armed Forces act within the bounds of that law and not independently or without any control or direction. The competency of the Parliament to enact such laws and to confer powers under the same is unexceptionable. Subject to what is observed below, taken individually, each of the aforementioned enactments is within the competency of the Federal Legislature and the conferment or delegation of powers through them cannot be questioned.
However, in the peculiar circumstances of the instant case the entire exercise, beginning with the 'direction' of the Federal Government ; followed by an order of the Chief Minister of Punjab ; the simultaneous enactment of the above-noted law ; the delegation of powers under the D. P. R. And the various actions actually taken by the Armed Forces have to be attended to together and examined in entirety and not in isolation from one another. Viewed from that perspective we are of the opinion that Act X of 1977 is invalid for being contrary to and beyond the scope of Article 245 (1).
By this Act, section 2 of the Pakistan Army Act has been amended and in clause (d) of that section a new sub-clause, 1. e. Sub-cl. (lit) has been added whereby civilians who were not, previously, subject to the jurisdiction of the Pakistan Army Act have been made subject thereto and can, now, be tried for a large number of offences under the Pakistan Penal Code and other Penal Acts. Sub- clause (III) is reproduced here for facility of reference t- "Sec. 2(d) (110.-An offence punishable under section 123, 123-A, 124-A, 143, 144, 147, 148, 152, 153-A, 188, 193, 224, 225, 283, 302, 304, 307, 325, 326, 332, 342, 353, 364, 366, 376, 392, 295, 396, 397, 431, 435 or 436 of the Pakistan Penal Code (Act XLV of 1860), or the West Pakistan Arms Ordinance, 1965 (W. P.
Ordinance XX of 1965), or any rule made thereunder or the High Treason (Punishment) Act, 1973 (XXVIII of 1973). Or the Prevention of Anti-National Activities Act, 1974 (VII of 1974), or an attempt or conspiracy to commit, or an abetment of, any of the said offences; ".
' By another amendment in the same Act, exclusive jurisdiction has been conferred on the Courts- Martial, to try, convict and sentence civilians.
' Consequently, the ordinary criminal courts of Lahore do not, now, have the jurisdiction to try them for the said offences, unless any particular case is transferred to them by the "authorised' Army Officer.
6. It is important to note that even a nexus or connection has not been provided by the amendment between the offences made exclusively treble by the Military Courts by virtue of this amendment and the object for which the Armed Forces had been called in Lahore i,e, to restore law and order. The result is that even to that extent this amendment in the Army Act, has in fact, resulted in the displacement of the ordinary criminal Courts in the District of Lahore by the Military Courts.
' The provision in the proviso to section 3 of Act X of 1977 that the authorized Army Officer can transfer any such case, in his discretion to the ordinary criminal Courts, does not in our view improve the status of the ordinary Courts.
7. It is, therefore, obvious that to the extent that the Courts established by the Armed Forces are trying civilians of Lahore for offences which have no nexus with the object for which they are said to have come, they (i,e, the Armed Forces) are not acting "in aid" of the civil power but in derogation or replacement thereof. This is certainly not envisaged by Article 245(1 of the Constitution. It is evident from a reading of Article 245(1) that the "laws" subject to which the Armed Forces are required to act under that Article are intended to be of a nature as would not place the Armed Force in a position superior or dominant to that of the civil power or to bestow such powers on them that, instead of acting in aid of the civil power, the Armed Forces. In fact, start acting in supersession or displacement of the civil power. We are, therefore, of the view that as far as Act X of 1977, (which amends the Army Act, 1952), is concerned, the most essential precondition prescribed by clause (3) of Article 245 which is mentioned by the learned Attorney-General as the 2nd jurisdictional fact, is absent. Consequently, we hold that clause (3) of Article 245 does not have the effect of ousting the jurisdiction of this Court under Article 199.
8. We may also add that since the very first day when the Armed Forces were called in, they have styled themselves as Martial Law Authorities or Martial Law Administrators. In fact, it was stated in the Press Note issued by the Government and published in the daily newspapers of the 24th of April, 1977, that "Martial Law" bad been imposed in Lahore District. The District has been divided by the army into Sectors which have been placed under the administration and control of different Military Officers who are being described as the Martial Law Administrators of these Sectors.
9. The learned counsel for the petitioners have vehemently urged that after the promulgation of the present Constitution, Martial Law cannot now be (constitutionally) imposed in this country because in no Article of the present Constitution of Pakistan, or any other statute, has the word "Martial Law" been used. They also pointed out that it had been observed by no less a person than the Prime Minister of Pakistan himself in the speech delivered by him on the 21st of April, 1972, on the occasion of his oath-taking ceremony at Rawalpindi that "Pakistan today has not only a people's Constitution but has seen the beginning of an era of democracy. And as a result of the people's struggle Martial Law has been buried. Insha Allah, it shall be our endeavour never to allow in this country an anti-people era. You should bear in mind the hardships and injustices which you-have undergone under the Martial Law regime, the injustices and cruelties you have suffered. If you are not vigilant and if you do not handle things carefully, if the politicians make mistakes, and if we indulge in petty matters, go along destructive channels or fight amongst ourselves, it is just possible that the bygone era might recur."
' On this aspect the stand of the respondents including the Provincial Government is somewhat different from the stand taken by the learned Attorney-General before us. While the respondents have stated in their Written Statement that the Armed Forces are merely acting in aid of the civil power and the word 'Martial Law' has been used merely "for the benefit of the common man", the learned Attorney-General stated that Martial Law had, in fact, been imposed in the District of Lahore, But he submitted that it is a Constitutional Martial Law and not a Martial Law as imposed in 1958 and 1969, which he described as coup d'etat. He pointed out that in the aforementioned instances Martial Law was imposed by the Army Commanders who acted in accordance with their own will, but in the present case it is the Federal Government which has imposed Martial Law ; that the command remains with the Government and that the power given to the Armed Forces, including that of establishing Military Courts, has been conferred by the Parliament. He submitted that, as such, they are obeying the double command of the Federal Government and the Parliament. He submitted that the Federal Government had imposed Martial Law in exercise of the inherent power vested in every Government and this power is derived rom the (British) Common Law.
' We have carefully considered these contentions, It is true that the British Constitution recognizes the power of the Government to require its loyal citizens including the Armed Forces to maintain law and order by meeting force with force. A. V. Dicey has observed at page 288 of his book titled 'An Introduction to the Study of the Law of the Constitution' (10th Edn.), that :- "Martial Law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly Government, and is most assuredly recognised in the most ample manner by the law of England."
' It was also stated further at page 290, that : "If, then, by martial law be meant the power of the Government or of Loyal citizens to maintain public order, at whatever cost of blood or property may be necessary, martial law is assuredly part of the law of England."
The learned Attorney-General has relied upon this power of the Government which is based on British Common Law. It has, however, to be noticed that in England there is no written Constitution while Pakistan is governed by a written Constitution and all powers and duties of the Government or the Armed Forces must flow from its provisions. Consequently, have examined all the Articles of the present as well as the previous institutions of Pakistan relating to the powers of the Parliament to make was of indemnity. These are Article 196 of the 1956 Constitution, Article 223-A of the 1962 Constitution, Article 278 of the Interim Constitution, 1972, Article 237 of the Constitution of 1973 (i,e, the present Constitution) as well as Article 34 of the Indian Constitution.
' We have also studied the judgments cited before us dealing with the various kinds of Martial Law, i,e, Muhammad Umar Khan v. Crown (1), Asima Jilani's case (2) and Zia-ur-Rehman's case (3).
' We have also perused the views of various authors including A. V. Dicey to the nature of Martial Law.
It is noteworthy that while in all the relevant provisions of the previous Constitutions of Pakistan referred to above and Article 34 of the Indian Constitution the word "Martial Law" occurs, but it is conspicuous by its absence in Articles 237 and 245 of the present Constitution. This clearly shows that the framers of the present Constitution intended to bury Martial Law in accordance with the observation made by the Prime Minister in his speech reproduced above.
' Apart from this, we notice that the pari materia Articles of the other Constitutions mentioned above provided not only for passing laws indemnifying acts done by the concerned persons (including Army Officers) during the period of Martial Law, but also provided for making of laws validating any sentence passed, punishment inflicted and forfeiture ordered during that period. But Article 237 of the present Constitution does not provide for making laws validating any sentence passed, punishment inflicted and forfeiture ordered by them (the Military Courts). This glaring difference clearly indicates that the present Constitution neither envisages the imposition of Martial Law nor the exercise by the Armed Forces of any judicial functions, as hereinbefore explained.
' We are, therefore, of the view that despite the fact that the Government insists on describing the operation being carried out by the Armed Force at present in the district of Lahore, as 'Martial Law', it is not 'Martial Law' in any of the recognised meanings of the term as given in Muhammad Umar Khan v. The Crown (1) or by Dicey and other authorities on Constitutional law. This term has been probably used by the Government in its Press Notes etc., to overawe the public by creating an impression in its mind that in the present operation the Armed Forces have arrived with the same force and fury as in the two previous Martial Laws, with which the people of Pakistan are familiar to their bitter experience.
(1) PLD 1953 Lab. 5283) PLD 1973 SC 49 (2) PL 1..) 1972 SC 139