1. ' ABDUL KADIR SHAIKH sic C. J.-By this petition under Article 199 of the Constitution, the petitioner Niaz Ahmad Khan, an Advocate of this Court, has challenge the imposition of Curfew/Martial Law in Karachi Division and Hyderabad and all actions taken thereunder, and seeks declaration that `the fatal shooting of citizens in Liaquatabad on 21st (Friday) afternoon by the Law Enforcing Agencies deployed in the area was improper, unjustified and without lawful authority" ; that "section 144, Cr. P.
2. C. Is void and unforceable", and that "imposition and/or continuance of Press censorship by the respondents [namely, (1) Province of Sind, (2) Military Administrator, Karachi Division/Elyderabad District and (3) Pakistan] in the events occurring is illegal and without lawful authority" I and therefore "a prohibitary injunction be issued to the respondents restraining them from giving directly or indirectly any effect to the afore-cited impositions/actions/orders/instructions including setting up and functioning of Martial Law Court", and "any other order or direction deemed fit and proper in the circumstances of the case" may be issued.
3. ' While acquitting this petition to regular hearing, the Division Bench of this Court, in view of several questions of constitutional importance having been raised, made a reference to the Chiaf Justice for the constitution of a larger Bench for hearing of this petition. It is thus that this case came up before this Full Bench.
4. ' On 16th May 1977 learned Advocate-General who appears for the Provincial Government, the first respondent, was to commence his further arguments for the second day. Hs, however, at the very outset brought to our notice that the Constitution (Seventh Amendment) Act, 1977 had, in the meantime: been passed and assented to by the President, and as a constitutional requirement, this petition, by virtue of the mandate contained in the newly in muted Clause (4) of Article 245 of the Constitution must remain suspended for the period during which the Armed Forces are acting in aid of civil power in pursuance of that Article.
5. ' Full hearing of the case was thus interrupted as it became necessary to hear the learned counsel for the parties on the new issue that arose due to the constitutional amendment.
6. ' However, before we deal with the provisions of the Constitution (Seventh Amendment) Act, 1977 in so far as these seek to affect this petition it is only appropriate that we record the facts and circumstances leading to the filing of this petition, to the exteat they are not controverted and also notice the arguments addressed by the learned counsel for the parties up til now.
7. ' The facts date back to 21st April 1977. On this duty the President issued Proclamation of Emergency under Netification No, F-24 (4)/77-Pah. Which reads as follows ; ' Whereas the President is satisfied that a grave emergency exists in which the security of Pakistan is threatened by internal disturbance beyond the power of a Provincial Government to control; ' Now, therefore, in exercise of the powers conferred by clause (1) of Article 236 of the Constitution of the Islamic Republic of Pakistan, the President is pleased hereby to vary the Proclamation of Emergency issued on the twenty-third day of Numember, one thousand nine hundred and seventy-one, and continued in force by Article 280 of the said Constitution, as follows, namely t ' In the aforesaid Proclamation, after the words "threatened by external aggression", the words "and by internal disturbance beyond the power of a Provincial Government to control" shall be added."
8. ' On the same day the President also issued an Order in exercise of the powers conferred upon him by clause (2) of Article 232 of the Constitution suspending the right to move any Court for the enforcement of the Fundamental Rights specified therein.
9. ' This Order reads t "Whereas the Proclamation of Emergency referied to in Article 280 of the aforesaid Constitution, the President is pleased to declare that the right to move any Court exercising jurisdiction in any area wherein the Armed Forces of Pakistan are for the time being acting in aid of Civil Power, including the right to move the Supreme Court, for the enforcement of the Fundamental Rights provided for in Articles 9, 10, 14 (1), 15, 16, 17, 18, 19, 23. 24 and 25 of the aforesaid Constitution, and all proceedings pending in any such Court which are for the enforcement, or involve the determination of any question as to the enforcement, of any of the said Rights, shall resnain suspended for the period during which the Armed Forces of Pakistan are so acting in aid of civil power."
10. ' On the same day the President also issued the following direction under Article 245 of the Constitution "In exercise of the powers conferred by Article 245 of the Constitution of the Islamic Republic of Pakistan, the Federal Government is pleased to direct the Armed Forces of Pakistan, subject to law, to act in aid of Civil Power when called upon to do so by the Chief Minister of a Province in such areas as may be specified by the Chief Minister."
11. ' Pursuant to this Order the Chief Minister of Sind issued the following directive to the Armed Forces on the same day "Pursuant to the order dated 21st April 1977 of the Federal Government I do hereby call upon you to act in aid of Civil Power and exercise such powers and perform such functions as may be deemed necessary for maintaining Law and Order and security within the limits of the Karachi Division and the Revenue limits of Hyderabad District."
12. ' Pakistan Army Act, 1952 was also amended on the same day by Pakistan Army (Amendment)
13. Ordinance No, XVIII of 1977, which however stands replaced by Pakistan Army (Amendment) Act No, X of 1977. This Act is deemed to have taken effect on the 21st day of April 1977 and its provisions, except for those contained in clause (b) of its section 2 which extend to whole of Pakistan, are applicable only to those areas in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 243 of the Constitution. The Amending Act has introduced certain additions in section 2 of the Pakistan Army Act, 1952 which now in its amended form reads as follows "2.-(1) The following persons shall be subject to this Act, namely : (a)officers, junior commissioned officers and warrant officers of the Pakistan Army ; (b)persons enrolled under the Indian Army Act, 1911, before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act (bb) persons subject to the Pakistan Navy Ordinance, 1961, or the Pakistan Air Force Act, 1953, when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Government may direct ;
(c) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army;
(d) persons not otherwise subject to this Act who are accused of-
(1) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under Official Seciets Act, 1923 ; oran offence punishable under sections123,123-A, 124-A,143,144,147,148.152,53.A,184,193, 224, 225,283,302,304,307,3:5,326,332,342,353, 364, 366,376, 392, 395,39k,397,43',43i, or436 of the Pakistan Penal Code (Act XLV of 1860), or the Pakistan Arms Ordinance, 1965 W. P. Ordinance XX of 1965), or the Explosive Substancf's Act, 1908 (VI of 1908), or she Defence of Pakistan Ordinance; 1971 (XXX of 1971), or any rule made thereunder or she High Treason (Punishment) Act, 1973 (LXVIII of 1973), or the Prevention of Anti-National Activities Act, 1974 (VII of 1974 or on attempt or conspiracy to commit, or on abetment of any of the said offences.
(dd) Persons not otherwise sublect to this Act who are accused of having done any act with intent to impair the efficiency cr impede the working of,' or to cause damage to -
(i) any building, vehicle, machinery apparatus or other propetty used, or Intendei to be used, far the pure: ses of the State or any local authority (10 any railway as defined in the Railways Act, 1890 (IX of 1890), tramway, road, canal, bridge, culvert, causeway, port dockyard, lighthouse cerodrorne' or any telegraph, telegraph line or post, as defined in the Telegraph Act, 1885 (XII of 1885) or any wfrelcs it:gait:don ;
(hi) any vessel or aircraft or rolling stock of a railway or tramway
(iii) any building or ot ier propmy used in connection with the production, distribwion or supply of any essential commodity, any sewage works, mine or factory ;
(iv) any prohibited place or protected place : that is punishable under any rules made under the Defence of Pakistan Ord nance, 1971 (XXX of 1971), or an attempt or conspiracy to do, or an abetment of any such act.
(e) persons not otherwise subject to this Act who belonged to the former East Pakistan Civil Armed Forces and were repatriated to Pakistan after the sixteenth day of December 1971.
(2) Every person subject to this Act under clause (b) or clause (e) of subsection (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.
(3) Every person subject to this Act under clause (bb) of subsection (1) shall remain so subject during the period of his secondment to the Pakistan Army.
14. (The underlining's are mine and these indicate the newly inserted provisions).
15. ' The offences mentioned in para. (ill) of clause (del) of subsection (1) of section 2 of the Act have been made tech sive) tribal by a cow martial held under the provisions of the Pakistan Army Act, 1952, notwithstanding anything contained to the contrary in the Code of Criminal Procedure, the Pakistan Aimy Act, 1952, or any other law for the time being in force. A provision has, heater, been made ter the transfer of any such case for trial to any Court or Tribunal of competent jurisdiction.
16. This is possible if an order in writing is passed by an officer authorized in this behalf by the Chief of Army Staff.
17. ' The next reference that may be made as to the series of the events of the 21st April 1977 relevant to this case is Notification No, S. R.
0. 353 (1)/77 by which the Federal Government t issued a direction that in any area in which Armed Forces of Pakistan are, for the time being, acting in aid of civil power, the powers conferred upon the Federal Government by the rules made under subsection (1) of section 3 of the Defence of Pakistan Ordinance, 1971 shall be exercised by the Chief of Army Staff and en officer subordinate and authorized by him in this behalf.
18. ' The Defence of Pakistan Ordinance, 1971 also stands amended by the Defense of Pakistan (Amendment Act, 1977) with retrospective effect from 21st April 1977. The provisions of the Amending Act also extend only to those areas in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil peer in pursuance of Article 245 of the Constitution. By these amendments "Magistrate" has been defined so as to mean and include an Officer of the Pakistan Army not below the rank of Captain and Officer" to mean and include an Officer not below the rank of Junior Commissioned Officer. The only other provision of the Amending Act is a newly added section 15-A which reads as follows : "15-A. Power to prohibit persons from moving out of doors.-(1) Any officer of the Armed Forces of Pakistan by whom the powers conferred upon the Federal Gaverament by any rules made under section 3 are for the time being exerciseable may, by order, direct that, subject to any exemptitn specified in such order, no person present within any specified area shall, between such hours, as may be so specified, be cut of doors except under the authority of a written permit granted by an authority or person so specified.
19. (2)If any person contravenes any order made under subsection (1) he shall, without prejudice to the provisions of subsection (3), be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.
20. (3)Any officer of the Armed Forces of Pakistan, or any officer of the Federal Security Force or any ether armed forces operating under the command of an officer of the Armed forces of Pakistan, engaged in enforcing compliance with an order made under subsection (1) may shoot at sight any person contravening the order so as to cause the death of, or other harm to, such person, if in his opinion which shall be final, it is necessary to do so."
21. ' Mr. Naseem Farooqui, learned counsel appearing in support of the petition, challenged all these instiumeots of law as being void, invalid and ultra vires of the Constitution and the law.
22. Proclamation of Emergency dated 21st April 1977, according to learned counsel, is invalid for the reason that the requirement of counter-signature of the Prime Minister contained In clause (3) of Article 48 of the Constitution has not been fulfilled by the counter-signature of Mr. Zulfiquar All Bhutto as the Prime Minister of Pakistan and for the further reason that it is vitiated by maiafider. In support of the allegations of mala fides, learned counsel submitted that the internal disturbances were not of such great magnitude as can be said to be beyond the power of the Provincial Government to control. According to learned counsel, except for the solitary incident of 18th April 1977 in which the factory of the Republic Motors Ltd. Was set on fire, no other grave incident had occurred in Karachi Division or in the Revenue District of Hyderabad so as to justify the issue of Proclamation of Emergency, or, as a matter of fact even a direction under Article 245 to the Armed Forces to act in aid of civil power.
23. ' These pleas are also the grounds upon which the direction of the Federal Government issued under Article 245 of the Constitution and the delegation of powers by the Federal Government under subsection (4) of section 3 of the Defence of Pakistan Ordinance. 1971 to the Armed Forces under Notification No, S. R.
0. 353 (1)/1977 dated 21st April 1977, have been challenged.
24. ' The Notification No, S. R.
0. 353 (1)/1977 was, however challenged on the additional ground that whereas under the directions issued by the Federal Government all the three components of the Armed Forces namely, Military, Naval and Air Forces are acting in aid of civil power, the delegation of powers under Defence of Pakistan Ordinance, 1971 under Notification S. R.
0. 353 (1)/77 has been made only to the Chief of Army Staff and an officer subordinate to and authorised by him in this behalf, and not to the other two complementary Forces. It may, however, be mentioned at this stage in this regard that by another Notification dated 5th May 1977 the Federal Government has directed that these powers shall be exercised by the Chief of the Naval Staff and the Chief of the Air Staff and an officer subordinate to and authorised by either of them in this behalf. This point was not, therefore, pressed further before us. The constitutional invalidity of the promulgation of Emergency dated 21st April 1977 and also the Constitution (Seventh Amendment) pleaded by learned counsel is grounded in his submission that the National Assembly of Pakistan, as presently constituted, is a body of unlawfully elected persons. The unlawfulness of the Elections of the Members of the National Assembly, according to learned counsel, lies in the self-evident proof that the General Elections to the National Assembly held on the 7th March 1977 were not honestly and fairly conducted and in the words of learned counsel, these are vitiated by wholesale "rigging" of the Elections.
25. ' In this behalf Mr. Naseem Farooqui sought to place reliance on the newspaper report appearing in the Daily Millat of 6th May 1977 which in its relevant part, translated into English, reads as follows : "Mr. Justice Sajjad Ahmed Jan, the Head of Election Commission has checked on the possibility of the rigging into more than half the National Assembly Seats.
26. ' Mr. Justice Sajjad Ahmed Jan now considers that instead of investigation of widespread rigging, it will be better to hold the Elections afresh."
27. ' Mr. Naseem Farooqui further pleaded that there was total failure on the part of the Election Commission to perform its constitutional duty under clause (3) of Article 281 of the Constitution which requires the Commission to organize and conduct the Elections and to make such arrangements as are necessary to ensure that the Election is conducted fairly and in accordance with law, and that corrupt practices are guarded against.
28. ' Mr. Naseem Farooqui also sought to rely upon the events that have occurred in Pakistan as an aftermath of the General Elections held on 7th March 1977 ; of all these we could, according to learned counsel, competently take judicial notice ; and upon this submission rested yet another assertion of learned counsel that all these events serve as uncontroversial evidence of the 'will of the people' of Pakistan, as envisaged by the Constitution, in its juridical sense, and that this 'will of people', learned counsel further pleaded, is to the effect that they do not recognize the newly elected Members of the National Assembly as the persons lawfully elected so as to constitute the National Assembly of Pakistan.
29. ' Mr. Naseem Farooqul, as an alternative argument, challenged the vires of the various 'Military administrative orders' issued by the Military Administrator who later on styled himself as 'Martial Law Administrator'. In order to highlight the arguments advanced in this behalf, I may usefully reproduce one of these Military Administrative Orders, as an example. In the context of the grievance with which the petitioner is personally concerned, i,e, the imposition of curfew in Karachi, the Military Administrative Order No, 1 would be relevant, and it reads as follows : "The Military Administrator of Karachi Division and Hyderabad District has announced the following orders for strict compliance with immediate effect
(a) All meetings/processions stand banned with immediate effect.
(6) No one shall carry arms or weapons of offence of any description whatsoever.
(e) Loudspeakers shall not be used except for Azans.
30. (d)All employees of essential services must report to the nearest military installations/establishment post/patrol immediately for further transportation to their areas of duty.
(e) Curfew violators and those indulging in loot, burning, stoning, will be shot at sight.
(f) All firearms, licensed or otherwise are to be reported to/produced in Sector Head Quarters within 24 hours."
31. ' Mr. Naseem Farooqui submitted that instead of confining themselves within the limits of the laws in so far as power that can be exercised which falls within the scope of aid required to be given to civil power, the Military Administrator is obviously acting in supersession of the civil power, and no better proof in this behalf is necessary beyond the bare perusal of the Military Administrative Orders that have been issued by him until now. The plea, in other words, is that so far as any power is being exercised by the Armed Forces that fall outside the inherently limited scope of the requisite aid to the civil power it is ultra wires of Constitution and the law. In this regard learned counsel placed reliance on the embargo contained in the language of Article 245 itself which is to the effect that the aid to civil power required to be given by the Armed Forces by virtue of a direction issued under Article 245 is 'subject to law', and he submitted the Armed Forces are, therefore, not competent to enact or enforce a law of their own making in the garb of aid necessary or required to be given to the civil power by virtue of the direction issued under Article 245.
32. ' Mr. Naseem Farooqui finally challenged the vires of the Amendments made by the Pakistan Army (Amendment) Act of 19i7 in the Pakistan Army Act, 1952 on the same grounds as were raised before their Lordships of the Supreme Court in F. B. Ali v. State (1), namely, that in view of the well- established rule of pith and substance, the trial of civilians in Military Court is not covered by Item No, (1) of the Federal Legislative List on the subjects of law making stated therein. In other words, the argument Which that in order to bring the law within the ambit of item No, (1) in the Fourth Schedule the law must be addressed to the Members of the Armed Forces and not to outsiders.
33. This argument has been highlighted in the judgment of the Supremo Court in A. B. Alt's case with reference to the 'Commentaries on the Constitution of the United States by Antiaru. p. 288 to point out that in the United States trial of civilians by military Courts has also given rise to grave constitutional problems and the view seems to have prevailed in the United States that the "founders of the State had no intention to permit the trial of civilians in the military Courts, where they would be denied jury trials and other constitutional" protections, merely by giving Congress the power to make rules which were 'necessary and proper' for the regulation of the 'land and naval forces'. Such a latitudinarian interpretation of these clauses would be at war with the well- established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority."
34. ' Mr. Naseem Farooqui also challenged the vires of Constitution (Seventh Amendment) Act, 1977.
35. The arguments on this topic will, however, be noticed at the appropriate stage later.
36. ' Mr. Shah Jamil Alam, learned Deputy Attorney-General, appearing for respondents 2 and 3, in reply, firstly submitted that the grounds mentioned by Mr. Naseem Farooqui in support of challenge to the vires of the Proclamation of Emergency dated 21st April 1977. The ing the enforcement of the Fundamental Rights, the direction issued by the Federal Government under Article 245 of the Constitution, etc. Are focused to the 'central point' urged by him that the recent General Elections held in Pakistan are vitiated for the reason of wholesale 'rigging'. This question, according to learned Deputy Attorney-General, is not open for adjudication in these proceedings under Article 199 of the Constitution for the reason of the bar contained in Article 225 which categorically states that 'no election to a House or a Provincial Assembly shall be called in question except by an Election Petition presented to such Tribunal and in such manner as may be determined by Act of Parliament'. Learned Deputy Attorney-General, therefore, submitted that the Representation of People's Act, 1976 was enacted for the purpose of Article 225 and the machinery provided by this Act is a total bar, serving as an adequate remedy, to the maintainability of a petition under Article 199 of the Constitution which seeks to challenge the election of any of the Members of the National Assembly who has been declared as a duly 'returned' candidate. Learned Deputy Attorney-General pointed out in this behalf that Election Commission has already published the names of the Members of the National Assembly in the official Gazette as the successfully returned candidates at the General Elections held on 7th March 1977 under the provisions of subsection (4) of section 41 of the Representation of the People Act, 1977, and therefore their Elections cannot be called in question except by way of the specific provisions made in this behalf in this Act.
(1) PLD 1975 SC 506 ' Learned Deputy Attorney-General heavily relied upon the language of Article 225 in contrast to the language employed in Article 199 of the Constitution to point out that whereas the former Article is not subject to any other provisions of the Constitution, the latter is so subject, and herein, according to learned Deputy Attorney-General, lies the difference that effect to the provisions of the former Article is to be given in such manner that these prevail over the provisions of the latter Article.
37. ' Learned Deputy Attorney-General took strong exception to the assertion made by Mr. Naseem Faroc'qui in regard to what was described by him as 'events in Pakistan as an aftermath of the General Elections held on the 7th March 1977' for being taken into consideration as evidence of the 'will of the People of Pakistan. According to learned Deputy Attorney-General only a few persons out of the large masses of population spread all over Pakistan have taken law into their own hands, and this fact cannot be, treated as evidence of the 'Will of the People', much less that this 'Will of the People' is to the effect that the General Elections held in Pakistan on 7th March 1977 are vitiated on account of wholesale 'rigging'.
38. On this aspect of the case learned Deputy Attorney-General proceeded to set up his own argument that the 'Will of the People' has already been displayed through the Election results which have been notified in the official Gazette under the provisions of subsection (4) of section 42 of the Representation of Peoples Act, 1976, and unless the election of any of the Members of the National Assembly is challenged in accordance with law, and this challenge also succeeds, he is to be treated as having been successfully returned as the Member of the National Assembly under the law.
39. ' In so far as Proclamation of Emergency issued by the President on 21st April 1977 is concerned, learned Deputy Attorney-General pointed out that by virtue of Article 280 of the Constitution, the Proclamation of Emergency issued on 23rd November 1971 is not open to challenge, and the amendment made therein subsequently by the Proclamation of Emergency dated the 21st April 1977 cannot also be called in question by virtue of the bar contained in this behalf in sub-clause (2) of Article 236 of the Constitution.
40. ' Learned Deputy Attorney-General further submitted that in view of the fact that the validity of Proclamation of Emergency dated the 21st April 1977 is not open to challenge grave emergency threatened by internal disturbance beyond the power of the Provincial Government to control must be presumed to exist, and the direction of the Federal Government under Article 245 calling upon the Armed Forcei to act in aid of civil power cannot be allowed to be subjected to an issue in these proceedings on the ground of adequacy of civil powers means to control the internal disturbances.
41. ' Learned Deputy Attorney-General, however, clarified that this argument is totally independent of his submission that the power conferred by the Constitution on the Federal Government to issue a direction under Article 245 to the Armed Forces to act in aid of civil power is not made dependent upon the emergency provisions contained in Chapter X of the Constitution being made operative.
42. ' Learned Deputy Attorney General submitted that on the facts of the present case, however in view of the Proclamation of Emergency dated 21st April 1977, the internal disturbances beyond the power of the Provincial Government to control are to be presumed to exist, and the aid to the civil power in the meaning of Article 245 became a necessity and, therefore, the argument of Mr. Naseem Farooqui that the internal disturbances in the Province were not so grave as to justify a direction under Article 245 to be Issued by the Federal Government is wholly misconceived.
43. ' Regarding the newly inserted provisions in the Pakistan Army Act, 1952 learned Deputy Attorney- General submitted that, in view of the fact that the Armed Forces are acting in aid of civil power in certain areas of the Provinces, the People of those areas, as the areas themselves, fell within the subject-matter of the field covered by Item No, (1) of the Federal List. And the Federal Legislature is, therefore, competent to enact laws in relation to the people pertaining to the areas in which the Armed Forces are acting in aid of civil power in pursuance of a direction issued under Article 245 of the Constitution.
44. ' Learned Deputy Attorney-General, as an alternate, rested his arguments on the plea that in view of the Proclamation of Emergency issued on 21st April 1977, the Federal Legislature is, even otherwise, competent under sub-clause (a) of clause (2) of Article 232 to make laws with respect to any matter enumerated in Part II of the Federal Legislative List or the Concurrent Legislative List, or e ith respect to any matter not enumerated in either of these Lists as if it were a matter specified in Part I of the Federal Legislative List, and the vires of Act X of 1977, therefore, learned Deputy Attorney-General submitted, is not open to question on the ground of competency of enacting laws with respect to any subject.
45. ' Learned Deputy Attorney-General further submitted that by virtue of Constitution (Seventh Amendment) Act, 1977 the direction issued by the "Federal Government under Article 245 to the Armed Forces to act in aid of civil power can no longer to called in question, and this Court, at present, is not competent to exercise any jurisdiction under Article 199 of the Constitution in relation to the areas covered by the Karachi Division and the Revenue District of Hyderabad where the Armed Forces are acting in aid of civil power. So far this petition is concerned, learned Deputy Attorney Gereral supported the plea raised by the learned Advocate-General that it must remain pending in terms of the provisions of the newly added clause (4) of Article 245.
46. ' Learned Advocate-General appearing for the Provincial Government, respondent 1, fully adopted the arguments advanced by the learned Deputy Attorney-General, and further submitted that the elections of the Members of the National Assembly could not have been challenged except by the mode prescribed by the Representation of Peoples Act, 1976, particularly when the names of the Members of the National Assembly have been duly notified in the official Gazette by the Election Commission under sub- section (4) of section 4i of the Act. In this regard, learned Advocate- General further submitted that if the petitioner wished to question the elections of the Members of the National Assembly who have been duly returned at the General Elections held on 7th March, 1977, it was necessary for him to join them as parties in these proceedings, for, no order to their prejudice can be passed without granting them an opportunity of hearing.
47. ' Learned Advocate-General further submitted that in so far as this Court is concerned, the challenge to the elections of the Members of National Assembly can at best be made regarding only those who are Returned Candidates from the constituencies falling within the territorial jurisdiction of this Court namely, the Province of Sind, and this Court has no territorial jurisdiction to entertain challenge to the elections of those Members of the National Assembly who have been declared and notified as duly 'Returned Candidates' from the constituencies falling outside the Province of Sind. Learned Advocate-General made a further difference among those who have been declared to have successfully 'returned' from the constituencies falling within the Province of Sind, in so far as those Members who have been declared to have been duly returned uncontested.
48. According to learned Advocate-General, no exception can be taken to the election of those falling within this category, for, they were not the 'contesting candidates' at the General Election held on 7th March 1977 and cannot be said to be guilty of "rigging" the elections.
49. ' Learned Advocate-General pleaded that in any case this Court has no jurisdiction to entertain any petition under Article 199 of the Constitution In view of newly inserted Clause (3) of Article 245, and in so far as this petition is concerned, it must remain suspended as per constitutional requirement contained in clause (4) of Artiele 245 for such period as the Armed Forces are acting in aid of Civil Power in pursuance of a direction issued by the Federal Government under Article 245.
50. ' So far as the arguments addressed on this aspect are concerned, I would rather deal with them at an appropriate stage later' I may, however, mention at this stage that these arguments involve questions of vires of the Constitution (Seventh Amendment) Act, 1977 and the extent, if any, to which this Court's jurisdiction under Article 199 has been affected.
51. ' Another aspect on which heated arguments were addressed was the question whether use of Armed Forces of Pakistan under the provisions of Article 245 of the Constitution to act in aid of Civil Power amounts to declaration of Martial Law. This topic is also being just mentioned at this stage so as to indicate it as a subject matter of controversy, leaving further discussion on it at the appropriate stage.
52. ' After having summarized the arguments of the learned counsel for the parties, the stage is ripe for dealing with the questions raised in the case. It would be appropriate that I should. Take up the question that requires top consideration, which was described by learned Deputy Attorney General as the 'central point' of the main arguments of Mr. Nasim Farooqi i,e, whether the General Elections held in Pakistan on the 7th of March, 1977 are vitiated by wholesale 'rigging'.
53. ' At the very outset it may be stated that the Memorandum of the petition itself does not even mention the allegation that the General Elections are vitiated or that these are void due to whole sale 'rigging' as was argued by Mr. Nasim Farooqi. We, however, allowed him to raise this question on the basis of the evidence produced on record as this point has created intense public interest.
54. ' In support of this contention Mr. Nasim Farooqi relied upon what is described as the events in Pakistan as an aftermath of the recent General Elections; of which he wished us to take judicial notice, and he also relied upon a newspaper report appearing in the Daily Millat of 6th May, 1977, which contains a statement attributed to the Chief Election Commissioner, Mr. Justice Sajjad Ahmed Jan that he 'considers that instead of investigation of widespread rigging, it would be better to hold the Election afresh.' The contents of this news report have not been proved in evidence in accordance with law. On the contrary learned Deputy Attorney-General as well as learned Attorney-General stated in Court that a news report app in a daily newspaper to the effect that the Chief Election Commissioner has neither admitted nor denied the statement attributed to him in the news report of Daily Mina of 6th May, 1977.
55. ' According to Mr. Nasim Farooqi the material pointed out by him is self-evident proof to serve as safe foundation for the finding that the General Elections held in Pakistan on the 7th March, 1977 are vitiated, and National Assembly, as presently constituted, has no existence in law as a lawful National Assembly of Pakistan.
56. ' The main burden of the arguments presented in opposition to this plea is that any matter arising out of election to a House or a Provincial Assembly is excluded from judicial review by virtue of specific embargo placed in this behalf under the express bar contained in Article 225 of the Constitution which states that 'no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Parliament'.
57. ' It is pleaded that exclusion of challenge by any other mode, including on a petition under Article 199 of the Constitution, is total, for, the Makers of the Constitution were fully aware of the language in which they had couched Article 199, which in its very opening, contains the phlase 'Subject to the Constitution'. Yet while phrasing the language of Article 225 they, in their wisdom, placed no such embargo in Article 225 and, therefore, the provisions of Article 199 are subjected to by the provisions of Article 225.
58. It was on this line of arguments as to the interpretation of Article 225 that plea was raised that the Constitution itself prohibits the disputes relating to corrupt or illegal practices etc. Being called in question by any other mode or manner except by way of election petition under the provisions of the Representation of the Peoples Act, 1976. This Act, I may say at this stage for making the position clear is no doubt the law contemplated A by the provision made in Article 225. There can also be no manner of doubt that the Representation of the Peoples Act, 1976 does provide adequate machinery for the challenge that may be made to the Election of any of the Members of the National Assembly who has been declared to have successfully returned at the General Elections held on the 7th of March, 1977 on the ground of 'rigging of the election'.
59. ' Similar question arose before the Supreme Court of Pakistan in Tama! Shah v. Election Commission (1). While dealing on the subject of Elections, Cornelius, C. J. Reproduced a synopsis of the history of the resolution of Parliamentary Election disputes in England. I am tempted to reproduce this passage hereunder: "At first, in the period before the 17th century it was the King who settled such disputes without question, until under Richard II, there was a protest. In 1625, when King James-I took similar action which gave rise to protests, the House of Commons took over the matter within its own responsibility, after obtaining opinion from the Judges. At first, such matters were decided by the whole House, which led to the natural complaint that the minority party could not get justice, so that the composition of the House was a matter
(1) PL D 1966 SC I ' within the jurisdiction of the majority party. In 1770, it was decided by the House that such matters should be referred to Committees of the House for adjudication, but this again proved unsatisfactory, since the composition of the Committees was still within the power of the majority party. In 1868, a move was made for reference of election disputes of Special Tribunals and the Select Committee suggested that instead such cases might be referred to the Queen's Bench Division, whereupon the Judges protested, expressing their "insuperable repugnance" to being charged with this responsibility on the ground that their conclusions would become subject of public debate. They also pleaded overwork and the right not to have such duties imposed upon them, in protesting against what was described as an "objectionable measure". In 1879, a rota system was devised i,e,, a panel of Judges of the Queen's Bench Division was formed and it was provided that each election dispute should be referred to two Judges taken from this panel. This system is now operated under the Representation of the People Act of 1949 which requires the Judges to follow the principles and procedure of the earlier Parliamentary Committees, that is to say, the election law as laid down by these Committees from the year 1770 onwards, including "the principles and the rules with regard to agency and evidence and to a scrutiny," in all matters arising for determination in election disputes, Parliament's presence at the trial is secured by the provisions that the shorthand writer of the House of Commons shall attend. Where there is difference of opinion between the two Judges as to whether a returned candidate was duly elected, the election stands, and if they agree that he was not duly elected, but differ only on other matters, the election is void. There is no provision for reference to a third Judge in such cases. There is an appeal on a point of law by special leave of the High Court which is to be heard by the Court of Appeal, whose decision shall be 'final and conclusive.'
60. ' All the authorities, however, agree that this jurisdiction is really a part of the Parliamentary jurisdiction, the High Court being used as a body to which determination of disputed elections and of all questions arising therein have been entrusted. There would appear to have resulted from this development of the law in England, a transfer of an extremely important power of the sovereign Legislature, namely power of determining its own composition, from the Legislature itself, to the High Court so that in a sense : in the limited field of election disputes it is the High Court, which is the final determining authority, and not Parliament as before.
61. ' Cornelius, C. J. Noticing this historical background as also taking into consideration the law as it prevails in England and/the specific provisions o the Constitution observed as follows: - "Where the Parliamentary and judicial traditions are not indigenous, nor of any long standing, but where the Constitution expressly provides for differentiation of functions between the three great organs the State, it is a major consideration of great weight that its provision should not be interpreted in a manner which enables one of the organs to interfere directly with matters which the Constitution has placed exclusively within the authority of another organ for "firm determination". In direct contrast to the provision now obtaining in England that election disputes are referred to the High Court for determination under the special provisions referred to above, in our Constitution, Article 171 requires that such matters should go before specified authorities and Tribunals for "final determination". These authorities and Tribunals exercise in, the relevant respect jursdiction which does not and never did he long to the High Court, but is an essential part of Parliamentary jurisdiction, that has been by law entrusted to specified authorities to operate."
62. ' So far as the point under consideration is concerned, I may say that the Supreme Court held that the force of Article 171 of the Constitution of 1962 was a bar to the exercise of jurisdiction by the High Court under Article 98, in the relevant aspects contained in Article 171.
63. ' 'This view was upheld later in Farzand All v. Province (f West Pakistan (1). 1 am relieved of the task of an elaborate discussion on this question in view of the law already laid down by their Lordships of the Supreme Court. I may, however, mention that a broad argument was advanced in Farzand All's case before their Lordships of the Supreme Court that, once the name of the person has been registered on the roll of Electoral, his nomination papers accepted and he has been allowed to contest the election successfully, his election cannot be challenged in any other manner save under the specific law providing for challenging elections, oothwiths standing the fact that no provision has been made in the Constitution or any other law, for prescribing a special procedure to meet a preselection disqualification of the successful candidates. Hamoodur Rahman, C. I, who wrote the judgment for the Court, rejected this contention in these words "1 regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that ho cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warrant is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warrant or a proceeding in the nature of an information for a quo warrant unless expressly barred by some statute, is available precisely for such a purpose."
64. ' His Lordship, however, explained: "The introduction of election petitions to test the validity of elections and statutory provisions for appeals, have no doubt reduced the demand for the remedy but have not excluded it altogether. It will
(1) PLD 1970 SC 98 ' still be available in all cases where the matter is, as in the case under consideration, outside the scope of the statutory remedy."
65. ' In the case before their Lordships of the Supreme Court the challenge to the election of the Members of the National Assembly concerned was made on the ground of their pre-election disqualifications and also on the grounds which could not have maintained an election petition. It was due to this admitted position, namely, absence of adequate remedy being available that challenge to the elections through constitutional means under Subclause (b)(ii) of clause (2) of Article 98 of the Constitution of 1962 was held to be competent.
66. I may, however, clarify that the observations of the Supreme Court in Farzand All's case pertain to the interpretation of Article 17 livis-a-vis Article 98 of the Constitution of 1962, the former being no parallel in its language to Article 225 of the present Constituton, but in any case for the purpose of the present case, it would suffice to observe that the challenge to the elections on the grounds of illegal practices in relation to the actual conduct of the election being provided by the Representation of the Peoples Act, 1976, and thus adequate remedy being available, the challenge to the election of the Members of the National Assembly through this petition under the provisions of Article 199 of the Constitution is clearly barred.
67. ' Moreover, as rightly pointed by the leaned Deputy Attorney-General, with whom learned Attorney- General fully agreed, the petitioner cannot be permitted to challenge the elections of the Members of the Assembly in C the absence of having joined them as parties. The principle that no one is to be condemned unheard is so deeply rooted in our judicial system that nothing need be further said about it.
68. ' The Members of the National Assembly having been already notified in the official Gazette as the duly elected Members of the National Assembly are, therefore, the lawfully returned Candidates at the General D Elections held on the 7th of March, 1977 and the National Assembly constituted by them is, therefore, the lawfully constituted National Assembly of Pakistan, ' I am, however, tempted to deal with the plea raised by Mr. Nasim Farooqi that the events in Pakistan as an aftermath of General Elections held on 7th March, 1977 themselves constitute a self- evident proof of the will of the People of Pakistan that they do not recognize the Elections of the Members of the National Assembly at the General Election held on 7th March, 1977 as fair elections under the law. Beyond the oral assertion that the General Elections held in Pakistan on 7th March, 1977 are vitiated on account of wholesale 'rigging', there is nothing on the record before us to support this plea. The acceptance of the plea would necessarily involve total disregard of not only the law of evidence, but also the other laws of Pakistan. Except for certain newspaper reports containing conflicting allegations regarding certain incidents the contents thereof being inadmissible in evidence, there is nothing else to suggest anything as to the events in Pakistan which according to Mr. Nasim Farooqi can serve as the evidence of the popular will, not to speak of the 'will of the People' of Pakistan, as the learned counsel put it.
69. ' I may now, for the time being, leave further discussion on the subject of 'Will of People', as what has been expressed would suffice in respect of the pivotal point of the arguments advanced by Mr. Nasim Farooqi, as to the lawfulness of the General Elections held in Pakistan on the 7th March, 1977.
70. The subject of `Will of People' however, requires further discussion at a later stage on the question raised regarding the vires of the Constitution (Seventh Amendment) Act, 1977.
71. ' I may now take up the arguments addressed in relation to the Proclamation of Emergency issued by the President on the 21st April, 1977. It has been reproduced already in the earlier part of the judgment, however. It would be useful to reproduce the Proclamation of Pmergency dated 23rd November, 1971 as varied by the Proclamation of Emergency dated 21st April, 1977. It reads: "No, 45/1/71-P & 0.-Whereas the President is satisfied that a grave emergency exists in which Pakistan is threatened by external aggression "and by internal disturbance beyond the power of a Provincial Government to control'.
72. ' 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 Frsident is pleased hereby to issue this Proclamation of Emergency."
73. ' So far as the Proclamation of Emergency dated 23rd Novermber, 1971 is concerned, there can be no manner of doubt that it is not open to any exception by virtue of the provision contained in Article 280 of the Constitution which reads as follows: "280.-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 male in pursuance of that Proclamation shall be deemed to have been validly made and shall not be called in question in any Court on the ground of inconsistency with any of the rights conferred by Chapter I, Part II."
74. ' Indeed the Proclamation of Emergency issued on the 23rd November. 1971 was not even challenged before us. As regards Proclamation of Emergency issued on 21st April, 1977 it would be notced at first glance that it has been issued by the President in exercise cf powers conferred upon him by clause (1) of Article 236 of the Constitin ion. This article reads as follows: "236.-(1) A Proclamation issued under this Part may be varied or revoked by a subsequent Proclamation.
(2) The validity of any Proclamation issued or Order made under this Part shall not be called in question in any Court,"
75. In view of a clear embargo placed by the language of clause (2) of Article 236, there is also no escape from the conclusion that the validity of the Proclamation of Emergency issued by the President on 21st April, 1977 cannot be called in question.
76. ' Even otherwise, it has been held that the nature of the enabling provisions contained in Article 232 is such that the President is intended to be the sole fudge of the existence of the situation calling for issue of Prodamatien of Emergency.
77. ' In Malik Ghularp Mani v. Deputy Commissioner, Karachi and others (1), in respect of similar provisions contained in Article 30 of the Constitution of 1962, I observed as follows:-- "To some indeterminate extent the power to wage war embraces the power to prepare for it and the further power to deal with the problem of adjustment after hostilities have ceased. In his Commentaries. Justice Story wrote as follows with specific reference to the question of preparation for war:- 'It is important also to consider, that the surest means of avoiding war i3 to be prepared for it in peace ... How could a readiness fer war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? The means of security can be only regulated by the means and the danger of attack It will be in vain to oppose constitutional barriers to the impulse of self-preservation.'
78. ' Justice Douglas in the case reported as 333 U S 138 has remarked: "The war power of Congress under the Constitution does not necessarily end with the cessation of hostilities, what ever may be the consequences when war is officially terminated."
79. ' In this case the validity of Housing and Rent Resolution was challenged on the ground that it was passed despite the earlier termination of hostilities. Upholding this enactment his Lordship went on to say:- 'It is plain from the legislative history that Congress was invoking its war power to cope up with the current conditions of which the war was a direct and immediate cause. Its judgment on that scope is entitled to respect granted like legislation enacted pursuant to police power."
80. ' In this connection I cannot help quoting a passage from the observations of Lord Macmillan:- 'We have had good reason to realise the truth of Cicero' adage that amidst the clash of arms the laws are silent. The still, small voice of the law is quelled while men kill and destroy in defiance of its dictates. What we have to do is to restore the reign of law, to reseat justice on her throne, to cause right once more to prevail over wrong. The process of re-establishing the rule of law once it has been shattered is slow and difficult, it is so much easier to destroy than to rebuild. But until the world once more becomes law-abiding, it cannot hope to regain peace and happiness."
81. In the case of emergency created as a result of war, the basic fibre of the State is at peril and tee power to suspend fundamental rights of the citizens within the country is conceded to in almost all the countries. How long the Proclamation of Emergency should continue and what restrictions should be placed on the fundamental 'rights of the citizens during the F pendency of the emergency, are matters which must inevitably be left t the Executive, as has been done under the Constitution, because the Executive know best the requirements of the situation and the effect of the compulsive factors which operate during the period of great crisis. His Lordship Wright observed in the case of Liversidge v. Anierson (2): "the safeguard of British liberty is in the good sense of the people and in the "system of representative and responsible Government which has been evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary."
(1) PLD 1969 Km. 253 (2) 1942A, C 208 ' The argument of the present type urged before us was also presented before the Supreme Court of India in the case of Makhan Singh Tarsikka v. The State of Punjab (1). It was urged in that case that emergency created on, the Chinese Aggression may last long and in consequence the citizens would be precluded from enforcing their fundamental rights specified in the Presidential Order during the period that the Order was in operation. This argument was repelled as being essentially a political one.
82. In my opinion, therefore, the power granted by the Constitution to the President of Pakistan to issue Proclamation of Emergency or revoke is not open to judicial scrutiny by the superior Courts In Pakistan, in the exercise of powers under Article 98 of the Constitution, for the President alone is the sole Judge of the situation in either case.
83. ' In the same connection, their Lordships of the Supreme Court in Abdul Bagi, Baluch v. Government of Pakistan (2) observed as follows- "It is contended that the President, having chosen to declare in the proclamation Oat a grave emergency had arisen due to the fact that 'Pakistan is in imminent danger of being threatened by war' must be taken to have defined the emergency which was sought to be met. Hence, under clause (4) of Article 30 of the Constitution, the only power that the President had was to make and promulgate such Ordinances as were necessary to meet 'the emergency that gave rise to the issue of the proclamation'. There was no power in the President to provide for a different kind of emergency such as the preservation of the security of Pakistan or the public safety or the maintenance of public order."
84. ' We are unable to agree that the language used in the Proclamation can have the effect of curtailing the powers granted to the President by the Constitution. Article 30(1) is in these terms: 'If the President is satisfied that a grave emergency exists-
(a) in which Pakistan, or any part of Pakistan, is (or is in imminent danger of being) threatened by war or external aggression; or
(b) in which the security or economic life of Pakistan is threatened by internal disturbances beyond the power of a provincial Government to control, the President may issue a Proclamation of Emergency'.
85. ' The power of legislation given by clause (4) is as follows:- 'If, at a time when a Proclamation of Emergency is in force (whether or not the National Assembly stands dissolved or is in session at that time), the President is satisfied that immediate legislation is necessary to assist in meeting the emergency that gave rise to the issue of the Proclamation, he may, subject to this Article, make and promulgate such Ordinances as appear to him to be necessary to meet the emergency, and any such Ordinance shall, subject to this Article, have the same force of law as an Act of the Central Legislature.'
86. ' It will be noticed that this is in the nature of an enabling provision. It gives power to the President to proclaim an emergency if either or any of the conditions mentioned in sub-clause (a) or (b) exists.
87. But once an emergency has been validly proclaimed for any one or more of the grounds given in sub clauses (a) and (b) it is the emergency that has to be met and it is to
(1) A I It 1964 SC 381 (2) PLD 1968 SC 313 ' meet it that clause (4) authorizes the President to make immediate legislation by Ordinances.
88. Again though the Proclamation issued by the President stated 'that a grave emergency exists in which Pakistan is in imminent danger of being threatened by war', yet it did not say that the Proclamation was being issued only in exercise of the power conferred by sub-clause (a) of c'ause
(1) of Article 30. The Proclamation is in these terms:- ' Whereas the President is satisfied that a grave emergency exists in which Pakistan is in imminent danger of being threatened by war; ' Now, therefore, in exercise of the powers conferred by clause (I) of Article 30 of the Constitution, the President is pleased hereby to issue this Proclamation of Emergency.'
89. ' What was said, therefore. Was that the President was, in exercise of the powers conferred upon him by dame (1) of Article 30, pleased to issue the Proclamation. The emergency was not, therefore, confined only to meeting the imminent danger of being threatened by war, but the emergency was of a wider connotation which comprised the grounds mentioned in both of the said sub- clauses (a) and (b). The power of legislation derived by clause (4) was thus for the purpose of meeting the emergency declared under "clause (1) of Article 30" and not any particular portion of that clause. This does not mean that the emergency was circumscribed by the words of the recital contained in the Proclamation. What had to be looked at was the operative portion of the Proclamation. Looked at in this way the power to legislate by Ordinance which accrued to the President thereby cannot be restricted to any particular portion of clause (1) of Article 30.
90. ' In any event, even assuming that the immediate cause which gave rise to the issue of the Proclamation was the imminent danger of being threatened by war, no clear demarcation is possible of what is or what is not necessary for meeting that emergency. Internal disorder, sabotage behind the lines, prejudicial acts threatening or disturbing law and order within the country may all have far reaching effect on the measures needed to be taken for effectively meeting the threat or danger of war. It cannot, therefore, be said that the maintenance of the security or the economical life of Pakistan is not a matter having any bearing on the measures necessary for meeting the emergency created by the imminent danger of war. In such a situation threats of breaches of law and order or dangers to internal security may be more important for keeping up the morale of the people sO necessary for any efficient prosecution of war efforts and it is not difficult to comprehend that the prevention of such a pernicious situation might well be beyond the power of the Provincial Government to control. It car not, therefore, be said that although the emergency had been lawfully proclaimed (this is not disputed), the President had no power to make Ordinance to meet that emergency in the fullest measure.
91. ' The second attack on the Wes of the Ordinance is on the ground that it covers fields which are outside the exclusive legislative competence of the Central Legislature and, therefore, outside the competence of the President by reason of the provisions of clause (8) of Article 30. This clause reads thus : "The power of the President to make laws by the making and promulgation of Ordinances under this Article extends only to the making of laws within the legislative competence of the Central Legislature."
92. 'This argument is equally without any substance, for, under clause (2) of Article 131 where the national interest of Pakistan in relation to the security of Pakistan including the economic and financial stability of Pakistan or the achievement of uniformity in respect of any matter in different parts of Pakistan so requires the Central Legislature has the power to make laws for the whole or any part of Pakistan with respect to any matter not enumerated in the Third Schedule, which enumerates the subjects in respect of which the Central Legislature has exclusive power to make laws."
93. ' Again on the same topic the Supreme Court in M. M. Mansur All v. Arodhendu Shekhar Chatterfee
(1) observed as follows "In the present case the question whether the plaintiff-respondents who are admittedly nationals and residents of Bharat are alien enemies or not depend on the answer to the question whether we are at war with India and whether India is an enemy country. This, however, is a delicate political question, which, as a matter of State policy lies in the domain of the Executive Government and the Courts need not answer it. One on take notice of the physical facts bearing on the point which are that soon after the attack by India on Pakistan on the 6th of September 1965, the President of Pakistan declared that we were at war with India and a state of Emergency was proclaimed. There has since been no revocation of that declaration but there is also the fact that hostilities came to an end by the announcement of the ceasefire declaration in the Security Council and later the warring parties were brought to the conference-table at Tashkent by the good offices of the Russian Government where once again a declaration was made acknowledging the end of belligerency between Pakistan and Bharat and an announcement was made that efforts would be made to bring about a peaceful settlement of all outstanding disputes. But whether normalization of relations between the two countries has, in fact, been effected or not, is a matter of which the Government is the best Judge and it alone can say as to how we stand against India in terms of belligerency i,e, whether we are at war with it conventionally or otherwise."
94. ' In any case, in view of the provisions of clause (2) of Article 236, the validity of any Proclamation issued or Order made, under Part X of the Constitution is not open to any question in any Court. I have, however, reproduced the passage from the Judgment of the Supreme Court in Abdul Baql Baluch's case in order to also set at rest the point raised before us as to the vires of the Pakistan Army (Amendment) Act X of 1977 on the ground that it covers fields which are outside the legislative competence of the Federal Legislature. In this behalf the submission made by the learned counsel for the respondents is unexceptional that while Proclamation of Emergency is in force, Parliament has the full power to make laws with respect to any matter enumerated in the Federal Legislative List or the concurrent Legislative List or in respect of any matter not enumerated in either of those lists, as if it were a matter specified in Part I of the Federal Legislative List.
95. ' At this stage, it would be relevant to point out the provisions of Article 148 of the Constitution whereunder duty has been cast on the Federation to protect every Province against external aggression and internal disturbances and also to ensure that the Government of every Province is
(1) PLD 1969 SC 37 ' carried on in accordance with the provisions of the Constitution. Under clause (1) of this Article, it has been directed that the executive authority of every Province shall be so exercised as to ensure compliance with the Federal law which applies in that Province. It has, however, been clarified in clause (2) that, without prejudice to any other provisions of Chapter 2 of Part V of the Constitution, in the exercise of the executive authority of the Federation in any Province regard shall be had to the interest of that Province.
96. If, therefore, on being satisfied that there are internal disturbances beyond the power of a Provincial Government to control and a grave emergency exists in which the security of Pakistan or any part thereof is threatened, the exercise of power under Article 232 in issuing Proclamation of Emergency is a paramount duty cast upon the President and in such a situation, the Parliament at once acquires sufficient power to make laws for a Province or any part thereof with respect to any matter, irrespective o consideration that it is enumerated in any Legislative Lists or not.
97. ' Such a situation having occurred by the issuance of the Proclamation of Emergency dated 2lst April, 1977, it is hardly open to any one to contend that the direction issued under Article 245 of the Constitution by the Federal Government calling upon the Armed Forces of Pakistan to act in aid of Civil Power within the Province in which internal disturbances have arisen is ultra vires of the Constitution for the reason that the Provincial Government had enough resources at its command to control the internal disturbances ' In my opinion, therefore, apart from the protection available under clause (2) of Article 236 the challenge to the Proclamation of Emergency dated 21st April, 1977 and also to the direction issued by the Federal Government under Article 245 to the Armed Forces to act in aid of Civil Power on the grounds urged before us is futile.
98. ' However, I may deal with the points raised by Mr. Nasim Farooqi in support of the challenge to the validity of the Proclamation of Emergeacy on its own merits. In this behalf learned counsel submitted that the requirement of the counter-signature of the Prime Minister, as contained in clause (3) of Article 48 of the Constitution, has not been fulfilled by the counter-signature of Mr. Zulfiker All Bhutto as the Prime Minister of Pakistan on it. The precise challenge was directed on the ground noticed earlier that the Members of the National Assembly have not been lawfully elected at the General Election held on the 7th March, 1977 due to wholesale 'rigging' of the elections. Upon this assertion, Mr Nasim Farooqi based the plea that the National Assembly of Pakistan, as presently constituted, is not the lawful National Assembly within the meaning of Article 91 of the Constitution, and the election of Mr. Zulfikar Ali Bhutto as the Prime Minister is, therefore, invalid and ultra vires of the Constitution.
99. I have dealt with these submissions and further discussion would be an unnecessary exercise. Mr. Yahya Bakhtiar, learned Attorney-General, however, pointed out that by vii tue of the provision of Article 93, continua-1 tion of Mr. Zulfikar All Bhutto in the office of Prime Minister of Pakistan1 cannot at all be open to any exception, for, even if, for the sake of argument, the proposition be accepted that the National Assembly, as presently constituted, is not a lawful Body for the reason it is constituted by the Member who have been unlawfully elected by 'rigging' of elections, Mr. Zulfikar Al'
100. Bhutto is to continue to hold office until his successor enters upon the office of Prime Minister.
101. 629 Article 93 of the Constitution reads as follows t- "93.-(i) The Prime Minister shall continue to hold office until his successor enters upon the office of Prime Minister.
(2) Nothing in Article 91 or Article 92 shall be construed to disqualify the Prine Minister or a Federal Minister or a Minister of State from continuing in office during the period the National Assembly stands dissolved."
102. ' In view of the clear constitutional position under Article 93, no exception can be taken to the continuation of office of Mr. Zulfikar Ali Bhutto as the Prime Minister of Pakistan and he is to continue to hold that office until his successor enters upon the office of Prime Minister.
103. ' A parallel provision is contained in Article 133 in respect of the Chief Ministers, and, therefore, the same ob3ervations are true in the case of the present Chief Minister of Sind.
104. The validity of the Proclamation of Emergency issued on 2/st April, 1977 is, therefore, not open to challenge on the ground that Mr, Zulfikar All Bhutto lacked legal capacity as the Prime Minister in putting bis countersignature as the Prime Minister of Pakistan, ' I may now deal with arguments addressed in relation to the direction issued by the Federal Government under Article 245 of the Constitution calling upon the Armed Forces to act in aid of Civil Power. Elaborate arguments were addressed at the Bar whether the direction amounts to imposition of 'Martial Law'. The expression 'Martial Law' does not find any place in the Constitution, the question, therefore, arises whether on the direction issued by the Federal Government under Article 245 of the Constitution, use of Armed Forces in aid of civil power can be termed as Martial Law.
105. ' On the subject of Martial Law much has been said by their Lordships of the Supreme Court ; I am, however, tempted to quote a pessage on this topic from International Encyclopedia of the Social Sciences, Volume 10 at Chapter 315 t "The term "martial law" describes the exercise of military force to preserve order and ensure the public safety in domestic territory in a time of emergency, when the civilian authorities are unable to deal with the situation. In one form or another, under smelt names as "state of siege" or "state of emergency," the concept is found in every country. In some countries it is almost the normal type of government. In Anglo-American law, its only proper purpose is to restore order with a view to the restoration of civilian government, and the degree to which the military may properly assume governmental functions depends entirely on the needs of the situation. In its mildest form martial law may amount to no more than the employment of troops, in aid of and under the direction of the civil authorities, to supplement the regular police in the control of riots and other public disorders and the enforcement of the law, as was done in connection with integration of the schools in Arkansas and Mississipi. At the other extreme, if the emergency is great enough, such as actual or imminent invasion, the military authorities may assume all the functions of government, including the legislative and judicial, In such a situation statutes and even the Constitution may be suspended and replaced by ordinances of the military commander, and the civilian Courts superseded by military tribunals. Such Courts, although they bear a generic resemblance to courts-martial, are not bound to follow the same procedure, but may employ whatever rules are called for by the needs of the emergency. The best-known example of such a situation in recent American history is the declaration of martial law in Hawaii immediately after the Japanese attack on Pearl Harbor.
106. ' Martial law is nowhere explicitly mentioned in the Constitution but is simply an inherent attribute of sovereignty, the right of every government to take whatever steps are necessary for its own preservation. As such it is a part, although an extraordinary part, of the common law. Although the constitution does not explicitly either authorize or limit the executive's invocation of martial law, It is now well established that there are constitutional checks upon the exercise of this power. To the extent that the measures of martial law encroach upon the citizen's rights under state and federal constitutions, the civil Courts have jurisdiction to determine whether the measures taken are in fact commensurate with the emergency and to annul them to the extent that they are more drastic than the Court deems requisite. Although the Courts are usually disposed to give considerable weight to the executive's judgment of the crisis, there are numerous cases in which they have found martial law measures to be unjustified. Most such cases have involved the governors of States (some of whom have been tempted to use martial law whenever a political goal could not be achieved by lawful methods), but the Supreme Court has on occasion applied the same test to the exercise of war power by the president and Congress. One famous instance is Ex parte Milligan ( (1867) 71 U. S. 2) decided shortly after the Civil War, in which the Supreme Court freed a Copperhead leader who had been sentenced to death by a military commission in Union territory At a time when the civil Courts were open and functioning normally. Another is Ex parte Endo ( (1914) 323 U. S. 283), in which the Court. Having previously upheld most of the restrictive measures applied to American citizens of Japanese descent in World War It, finally concluded that certain relocation measures, involving drastic interference with normal constitutional rights, could not be justified by military need."
107. ' Learned Deputy Attorney-General relied upon the meaning given to Martial Law in Constitutional Law by Wale Bradly, VII Edition at page 408. The relevant passage reads as follows "The term, martial law, means in International Law the powers exercised by a military commander in occupation of foreign territory. The term, martial law, is also used to describe the action of the military when, in order to deal with an emergency amounting to a state of war, they impose restrictions and regulations upon civilians in their own country. It is this meaning of martial law that will be discussed in this Chapter. That the military may in a time of major emergency exercise such abnormal powers is recognised by common law. The term, martial law, is, however, misleading. The powers of the military are different only in degree and not in kind from those of the ordinary citizen.
108. Moreover they are part of the ordinary law of the land. Every citizen (and a soldier is a citizen) is under a duty to assist in the suppression of riotous assemblies and insurrections and in repelling invaders. The task of dispersing riotous assemblies in time of peace is best directed by the local civil authorities who have knowledge of local conditions.
109. ' Normally an officer in command of troops will act only if called upon to do so by a magistrate.
110. Nonetheless he must exercise his own judgment whether to use force and, if so, how much force to use the instructions of the civil authority will, however, rightly influence his judgment and will normally be followed. In time of invasion or insurrection on a wide scale or a reverse state of affairs arises. Both citizen and soldier have the same duty, but the military are in a state of war the best judges of the steps that should be taken. They are then entitled to give directions to and impose restrictions upon civilians in order to fulfill their duty to repel invaders or suppress rebels. This duty is a duty not only of the citizen but of the Executive. In time of war the Executive would normally act through military commanders. The duty is that of the Crown and its servants and of all citizens.
111. ' When the Government desires extraordinary powers for the military, emergency statutes are passed by Parliament, e.g. The Defense of the Realm Act 1914-15 and the Emergency Powers Act, 1939. Power may be taken to declare what is indistinguishable from a state of martial law at common law. For at common law there exist, apart from statute, powers to repel force by force and to take all necessary steps to preserve order. In the exercise of such powers the military may find it necessary to interfere with the actions, and even with the life and liberty of civilians. The relationship between the military and civilians known as a state of martial law has not arisen in this country since the Civil War of the seventeenth century. A State of martial law has, however, existed during the present century in South Africa, Southern Ireland, Palestine and parts of India while these territories were under British rule. The degree to which the military may interfere with civilians will vary with the circumstances. The test is whether the interference is necessary in order to perform the duty of repelling force and restoring order. The military authorities would be justified in ordering civilians to quit their homes, to obey a curfew order, to dig trenches or to render services, provided such orders were necessary for the defence of the country. If a civilian refuses to comply with such an order, the military are justified in enforcing obedience."
112. From what has been said above, it can be conveniently held that in comprehensive sense 'Martial Law' is that which is promulgated and administered by and through military authorities and agencies for the maintenance of public order and the protection of persons and property in territory wherein the agencies of the civil law usually employed for such purposes have been paralyzed, overthrown, or overpowered, and are unable, L for the time being, fully to operate and function. It is distinguished from military law in that it applies to all persons within the territory in which it is operative, and is not limited to the persons in the military service. Martial Law has also been distinguished from military government, which is applied to the control of territory which has been occupied by conquest. (See Ex prte Reed, MO U S 13, 25 L Ed 538).
113. ' In Muhammad Umar Khan v. The Crown (1) Muhammad Munir, C. J. Dealt with the concept of 'Martial Law' in great detail, as under :- "In constitutional jurisprudence, martial law is used at least in four (1) PLD 1953 Lah. 528 different senses. In the first sense, it is used with reference to the law relating to discipline in the armed forces of the State which is administered by tribunals, called Courts Martial. These Courts are constituted for the purpose of regulating the government of the military and their jurisdiction in no circumstances extends to the civilians. In our country, martial law in this sense means the law administered by Courts Martial constituted under the Army Act, the Naval Discipline Act a .d the Air Force Act. In the second sense, the word "martial law" means "military Government in occupied territory" and is used to describe the powers of a military commander in times of war in enemy territory. In this sense Martial Law is recognized by Public International Law as a part of the jus beill.
114. The Duke of Williegton had this kind of martial law in mind when in a debate in the Howe of Lords he said 'martial law is neither more nor less than the will of the General who commands the army. In fact martial law means no law at all.
115. ' In the third sense in which it is a part of English Constitutional Law, martial law means the rights and obligations of the military under the common and statute law of the country to repel force by force while assisting the civil authorities to suppress riots, insurrections or other disorders in the land. In American Constitutional Law, martial law in this sense is a form of the police power of the State and means law which has application when the military arm does not supersede civil authority but is merely called upon to aid such authority in the execution of its civil functions."
116. ' This form of Martial Law is well recognized by the Law of England and while noticing two cases illustrative of this law, namely, (1) Rex v. Kenneth and (2) Rex v. Pinney, Muhammad Munir, C. J.
117. Found the best exposition of this type of Martial Law in Lord, C. J. Tindal's charge to the Bristol Grand Jury on the Special Commission on the 2nd of January, 1832, 172 E R 966 reproduced hereunder :- "It has been well said, that the use of the law consists, first, in preserving men's persons from death and violence next, in securing to them the free enjoyment of their property ; and although every single act of violence and each individual breach of the law, tends to counteract and destroy this its primary use and object, yet do general risings and tumultuous meetings of the people in a more special and particular manner produce this effect, not only removing all security, both from the persons and property of men, but for the time putting down the law itself, and daring to usurp its place. The law of England hath, accordingly, in proportion to the danger which it attaches to riotous and disorderly meetings of the people, made ample provision for preventing such offences, and for the prompt and effectual suppression of them whenever they arise ; and I think it may not be unsuitable to the present occasion, if I proceed to call your attention, with some degree of detail, to the various provisions of the law for carrying that purpose into effect. In the first place, by the common law, every private person may lawfully endeavor, of his own authority and without any warrant or sanction of the Magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled ; he may stay those who are engaged in ii from executing their purpose ; he may stop and prevent others whom be shall see coming up, from joining the rest ; and not only has he the authority, but it is his bounden duty as a good subject of the King, to rcrform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evil doers to keep the peace. Such was the opinion of all the Judges of England in the time of Queen Elizabeth, in a case called the Case of Arms, although the Judges add, 'that it would be more discreet for everyone in such a case to attend and be assistant to the justices, sheriffs, or other ministers of the King in doing this'. It would undoubtedly be more advisable as to do ; for the presence and authority of the Magistrate would restrain the proceeding to such extremities until the danger was sufficiently immediate, or until some felony was either committed or could not be prevented without recourse to arms ; and at all events, the assistance given by men who act in subordination and concert with the civil magistrate, will be more effectual to attain the object proposed than any efforts, however well-intended, of separated and disunited individuals. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself and upon his own responsibility in suppressing a riotous and tumultuous assembly ; and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the common law. And whilst I am stating the obligation imposed by the law on every subject of the realm, I wish to cbserve, that the law acknowledges no distinction in this respect between the soldier and the private individual. 1 he soldier is still a citizen, lying under the same obligation and invested with the same authority to preserve the peace of the King as any other subject. If the one is bound to attend the call of the civil magistrate, so also is the other ; if the one may interfere for that purpose when the occasion demands it, without the requisition of the magistrate so may the other too ; if the one may employ arm for that purpose, when arms are necessary, the soldier may do the same. Undoubtedly the same exercise of discretion which requires the private subject to act in subordination to and in aid of the magistrate, rather than upon his own authority, before recourse is had to arm, or to operate in a still stronger degree with a military force. But, where the danger is pressing and immediate ; where a felony has actually been committed cr cannot otherwise be prevented ; and from the circumstances of the case no opportunity is offered of obtaining a requisition from the proper authorities ; the military subjects of the King ; like his civil subject, nor only may, but are bound to do their utmost, of their own authority, to prevent the perpetration of outrage, to put down riot and tumult, and to preserve the lives and property of the people."
118. ' In Luther v. Borden (1), the right to declare, apply and exercise Martial Law has been considered as one of the rights of the sovereignty and as essential to the existence of a nation as the right to declare and carry on war. It was stated broadly that Martial Law may be invoked in case of insurrection or extreme internal disorder with which the civil authorities are unable to cope.
119. ' It may be stated generally that subject to applicable constitutional limitation, the Martial Law Authorities in the enforcement of the martial law
(1) 7 How (U S) 1 ' may do all acts which are reasonably necessary for the purpose of restoring and maintaining public order.
120. ' In State ex rel D'Conner v. District Ct. (1), it was held that "military officers acting in suppression of an insurrection have much gin ater latitude in the exercise of their discretion as to what means are necessary and proper for them to employ than is possessed by civil officers in times of peace".
121. ' In Moyer v. Peabody (2) it was held that "when the circumstances require it, private property may be s'Azed or destroyed", and in Ex parte Milligan (3), the Court opined that the administration of martial law is a strictly military function, and it is necessarily limited in the field of its operation to the actual threat of war, insurrection, or disorder which go es rise to it.
122. ' In Johnson v. Jones (4), it was held that Martial Law can be applied to areas not within the actual theatre of military operations, but wherein the popular sentiment is so disloyal to the government that the public enemy cannot be rendered powerless for mischief and brought to justice by the civil authorities.
123. ' Learned Attorney-General heavily relying upon the position under the English common law wherein use of military forces to aid civil power for temporary purposes, for the period so long as this aid is necessary, has been fully justified, and in such events the civil Court's 'function is suspended, emphasized that the Constitution (Seventh Amendment) only recognizes what has all along prevailed and has been accepted by the Civil Courts. Learned Attorney-General submitted that it may well be necessary even for Civil Courts, which fall within the meaning of civil power, to seek aid of the armed forces for execution of their own authority ; the normal civil power being incompetent to perform this function for multitude of reasons. Learned counsel, therefore, submitted that there is no escape from the conclusion that in the event of civil power having failed to function the requirement of the armed forces to act in aid of civil power becomes essential to the very existence of the civil power.
124. ' Let me now examine the provisions of Article 245 In the light of this background.
125. ' Article 245 has been inserted in a separate Chapter being Chapter II under the heading 'Aimed Forces' Chapter I bearing the heading 'Services'. The Chapter II on 'Armed Forces' consists of three Articles and all these may be reproduced hereunder "243.-(i) The Federal Government shall have control and command of the Armed i- forecs.
(2) The President shall subject to law, have power- (a)to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces ; (b)to grant Commissions in such Forces ; and
(c) to appoint the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff, and determine their salaries and allowances.
241. Every member of the Armed Forces shall make oath in the form set out in the Third Schedule.
(1) 219 Law 1165 (2) 212 U S 78
(3) 4 Wall (U S) 2-10 L Ed. 281 (4) 44 III 142
245. 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 t Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Ar ned Forces start acting in aid of civil power.
(4) Any proceeding in relation to an 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."
126. ' Note.-The underlinings are mine and these indicate amendments introduced by the Constitution (Seventh Amendment).
127. ' It would be seen that the control and command of the Armed Forces has been assigned to the Federal Government, and it may, therefore, well be said that the Commandeering-Chief of the Armed Forces of Pakistan is the Federal Government. The functions of the Armed Forces are stated in Article 245 and these are 'to defend Pakistan against external aggression or threat of war, and also to act in aid of civil power'. The performance of these functions has been cast as a matter of constitutional duty on the,armed forces, and in so far as the aid to civil power is concerned, it has been stated in unambiguous terms that this action is meant to be 'subject to law'.
128. ' The Constitution of the United States in its section 8 gives the Congress power to provide for calling out the Militia to execute the laws of the Union, suppress insurrection and repel invasion and to provide for organising, army and discipline to Militia. The United States Constitution also expressly reserves to the States the authority of training the Militia according to the disciplines prescribed by the Congress. A State is, therefore, authorised to organise control, and discipline its own Militia subject, however, to any regulation of the Congress. The power to legislate concerning the Militia existed and was exercised before the adoption of the Constitution of the United States and as its exercise was not prohibited by that instrument, it remains with the State, subject only to the paramount authority of Acts of Congress enacted in pin nuance of the Constitution of the United States.
129. ' The Militia under the United States Constitution, as indeed in our own Constitution, is not a separate Department of the State Government, but is subject to the general laws and the directions that may be issued from time to time.
130. ' Militia, it has been said, is an essential feature of 'Sovereignty' of State. 'The great modern fact', Castano Mosca wrote in 1896, ''is the huge standing army that is to serve as custodian of the law, is obedient to the orders of a civil authority.
131. ' The phenomenon that amazed Muscat was the product of the emergence of constitutional consensus in the modern State and the increasing differentiation of the Military from other social groups. In all societies, military men differ from non-military men by the possession of arms. In primitive tribes and in the 'nation in arms' this difference is eliminated by dispursing military functions among the citizens at large. In more advanced and differentiated systems, only a portion of the population bears arms. The military could use its arms for purposes contrary to those of the acknowledged leaders of the polity or the dominant groups in the society. In traditional societies the problem of minimizing the role of force and violence and, hence the dominance of the military is politics was the major continuing problem of civil military relations. In the modern Sate however the line between politics and military affairs is much sharper and the officer corps is a distinct professionalized body whose leaders devote their careers to the study and practice of the management of violence.
132. ' It is said that in the modern State, the top military leaders have three general responsibilities: (1) to represent the needs of military security within the governmental framework, making claim on political leaders for the resources they believe necessary for security; (2) to advise the political leaders on the military implications of proposed courses of actions and to prepare plans for possible military contigencies ; and (3) to implement in the military sphere the policy decisions of the political leaders.
133. ' As already said there has always been a sharp difference between civil population and military men. I think it is from this difference that meaning can be spelled out to the name that can be ascribed to the administration by and through military authorities for maintenance of public order and protection of persons and property in an area wherein the agencies of the civil law usually employed for such purposes have been paralyses, over-thrown, or overpowered. Military men always go by military label even when they are called in to aid civil administration because by their traditional difference from civil population, they wish to be known by their own distinctive feature- use of arms. As a sociological category, the term military implies an acceptance of organized violence as a legitimate means for realizing social objectives. Military organizations, it follows, are structures for the coordination of activities meant to easure victory on the battle fields. Accordingly, the military professional is an officer who pursues a lifetime occupational career of service for the armed forces, where, to qualify as a professional, he must acquire the expertise necessary to help manage the pestnanent military establishment during periods of peace and to take part in the direction of military operations if war should break out. Career commitment and expertise is the hall-mark of a professional soldier. It is due to this distinctive feature that even in operations which aye of essentially civil nature e. g. Enforcement of laws, set up of Courts, that the military men label them as Military Law or Matial Law, Military Courts or Martial Law Courts.
134. ' Learned counsel for the respondents and also the learned Attorney-General referred to Chapter VII, Part I of the Manual of Pakistan Military Law (1957 Edition) at page 105 which bears the heading "Duties in aid of Civil Power. Paragraph 7 of this Chapter bears the sub-heading 'Martial Law' and reads as under:- "7. Martial Law.-So long as the disturbances amount to no more than a riot 0-e measures contemplated in this Chapter may be expected to suffice to reste-re order. Since the crowd is not acting in general defiance of the Government, the danger is as a rule, local and disappears with dispersal of the rioters and the arrest of the ringleaders. But where the disturbances are recurrent, widespread, concerted and directed against the constituted authorities it becomes the duty of the executive, in exercising the common law right of repelling force by force, to assume such exceptional powers and to take such exceptional measures as may be necessary, for the purpose of restoring order.
135. ' The state of things thus set up is generally known as "Martial Law". Further information on this subject will be found in the pamphlet on martial law issued by Judge Advocate-General's Department,"
136. Learned Attorney-General relying upon these instructions submitted that the name 'Martial Law' to the use of the armed forces in aid of civil power was given for the reason that from the ancient times such operation is styled as Martial Law. I think that he is very right in saying so, for, the armed forces were themselves in quandary as to the name to be given to the operation which they were required to perform as a constitutional duty on the direction having been issued by the Federal Government under Article 245. In the first instance they issued 'Military Administrative Orders', which they later on described as, 'Martial Law Instructions'. It seems to me, therefore, that it was for want of a proper name, and for the reason of their traditional distinction which armed men have always maintained from civil population that they styled their operation as 'Martial Law' and it is with this back ground that the present 'Martial Law' is to be viewed--name given as a common parlance, rather than a legal phraseology.
137. ' However, there is no scope of Martial Law in our Constitution of th type Duke of Wiilington had in mind when he said "Martial Law is neither more or less than the will of the General who commands the army. In fa Martial Law means no law at all".
138. ' In this connection I may also refer to the speech made by Mr. Abdul Hafiz Pirzada, the then Minister of Law and Parliamentary Affairs, while introducing the Constitution 1973 Bill in the National Assembly of Pakistan, on 17th February, 1973. This is what he saids- "We have suffered the dictators, and when President Zulfikar AR Bhutto, sometime back before this very august House, on a different occasion, said: 'Let us proceed to make the Constitution', these were his words at the time of making the Interim Constitution, and with the making of the Constitution the course of Martial Laws ; the apprehensions of taking the control of the country by usurpers and dictators and exploiters shall be buried once and for all', he was hundred per cent.
139. Correct."
140. ' It was for this reason that the makers of the Constitution enacted Article 245 so that use of Armed Forces may be availed of in an emergency, N but with the restriction that it be only on a direction issued by the Federa Government, and also the Armed Forces will act subject to law'.
141. ' Much emphasis was laid on this aspect of the case during the course of argument at the Bar. I have, therefore, referred to it for the sake of record.
142. ' Before I proceed further, I feel it will be relevant to revert to what I have already pointed out that Militia under the United States' Constitution, as indeed in our own Constitution, is not a separate Organ of the State.
143. ' In the United Kingdom, the actual control of the Armed Forces is vested in the Prime Minister and Cabinet. In the United States, the President is both Head of Government and constitutional Commander-in-Chief. In constitutional democracies the Minister in charge of the Armed Forces is usually a civilian, although practice varies from Country to Country and from time to time. The Minister is normally assisted by a group of permanent civil servants. The degree of influence of the Military and other groups in day to day politics is also affected by their degree of unity. The Parliamentary Cabinet system, especially as it functions in Great Britain unifies executive and political leadership and tends to maximize the authority of the political leaders in relation to the military. In the United States, on the other band, control over Military Force is divided between the President and Conferees. Top military leaders are those compelled to be more political than they are in Great Britain.
144. ' Under our Constitution, the Federal Government is the Commander-in Chief in terms of Article 243.
145. The provisions made in Article 245 to provide for calling upon the Armed Forces to act in aid of civil power has parallel in section 8 of the Constitution of United States. It would be noticed that the power is vested in the United States in Congress "for calling out the Militia To execute the laws or the Union, suppress insurrection. ......................
146. ' The provision made in our Constitution under Article 245 that on the direction issued by the Federal Government it shall be one of the Constitutional function of the Armed Forces to act in aid of civil power is therefore, not unknown to other constitutional instruments, and this power vested in the Federal Government is to be understood in the light of the background of the English common law and our own experience of the two Martial Laws in the past.
147. ' The question that has, however, seriously troubled my mind is the aspect of the arguments advanced before us as to the situation created by an act of Armed Forces which is not taken in aid of civil power but rather in conflict of it or outside the scope of law.
148. The Constitution makes it abundantly clear from the language employed in Article 245 itself by stating that the act in aid of the Civil Power performed by the Armed Forces is 'subject to law'. The expression 'subject to law places embargo on the Armed Forces not to trample upon the law, not to speak of the Constitution. The Armed Forces by very oath o their office administered to them under the Constitution are to bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan, and not to engage themselves in any political activity whatever, and to serve Pakistan sincerely and faithfully as required under the circumstances. The performance of this duty cast upon them is nothing short of a Constitutional duty and is made specifically 'subject to law'.
149. ' It has been held even under the English common law that the power to declare Martial Law does not include the power to supplant civilian law by military orders and supplant Courts by military Tribunals where conditions are not such as to prevent the enforcement of the laws by the Courts.
150. ' In Sterling v. Constantine (1) the Chief Justice Hughes delivering the opinion of U. S. Supreme Court observed: 'Martial Law can never exist where the Cowls are open and in the proper and uninterrupted exercise of their jurisdiction'.
(1) 287 U S 378=77 Led 375 ' However, his Lordship being conscious of the fact that power was conferred upon the Executive to call the Militia to execute the law of the Union observed in this respect as under "By virtue of his duty to cause laws to be faithfully executed," the Executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. His decision to that effect is conclusive. That construction, this Court has said, in speeking of the power constitutionally conferred by the Congress upon the President to call the militia into actual service, "necessarily results from the nature of the powers itself, and from the manifest object ontemplated." The power "is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union."
151. Martin v. Mott, 12 Wheat. 19, 29, 30, 6 L. Ed. 386, 537, 540, 541. Similar effect, for corresponding reasons, is ascribed to the exercise by the Governor of State of his discretion in calling out its military forces to suppress insurrection and disorder. Luther v. Boarden, 7 How 1, 45, 12 L. Ed. 581, 600 ; Moyer v. Peabody, 212 U. S. 78, 83, 53 L. Ed. 410, 415, 29 S. Ct.
235. The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate division, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace. Thus, in Moyer v. Peabody, the Court sustained the authority of the Governor to hold in custody temporarily one whom he believed to be engaged in fomenting disorder, and right of recovery against the Governor for the imprisonment was denied. The Court said that as, the Governor "may kill persons who resist," he "may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief."
152. ' The Chief Justice, however, warned!
153. "It does not follow from the fact that the executive as this range of discretion, deemed to be a necessary incident of his power to suppress disorder of every sort of action the Government may take no matter how unjuified by the exigency or subversive of private right and the jurisdiction of the Courts, otherwise available. Is conclusively supported by mere executive fiat."
154. ' What are the allowable limits of military discretion and whether or not they have been overstepped in a particular case, in the opinion of the Chief Justice Hughes, are judicial questions and in this behalf he observed - "Thus, in the theatre of actual war, there are occasions in which private property may be taken or destroyed to prevent it from failing into the hand of the enemy or may be impressed into public service and the officer may show the necessity of defending an action for trespass.
155. "But we are clearly of opinion." said the Court speaking through Chief Justice Taney, "that in all of these cases the danger must be immediate and impending ; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for ............. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified." Mitchell v. Harmony, 13 How. 115, 134, 14 L. Ed. 75,
83. See also United States v. Russell, 13 Wall. 623, 628, 20 L. Ed. 474, 475.
156. There is no ground for the conclusion that military orders in case of insurrection have any higher sanction or confer any greater immunity."
157. ' It was argued before U. S. Supreme Court in this case that it is possible for the Courts to call upon the Governor, after the alleged emergency has passed, to account for what he has done, but that they may not initiate a proceeding for injunction. Chief Justice Hughes repelled this submission in these words r "The suggestion confuse the question of judicial power with that of judicial remedy. If the matter is one of judicial cognizance, it is because of an alleged invasion of a right, and the judicial power necessarily extends to the granting of the relief found to be appropriate according to the circumstances of the case. Whether or not the injured party is entitled to an injunction will depend upon the nature of the right invaded and the adequacy of the remedy at law. If the Court finds that the limits of executive authority have been transgressed, and that in view of the character of the injury equitable relief by injunction is essential in order to afford the protection to which the injured party is entitled, it cannot be said that the judicial power is fettered because the injury is attributable to a military order."
158. ' I wholeheartedly adopt these principles of law as can be made applicable within the frame-work of our Constitution, and would hold that if High Court finds that limits of executive authority have been transgressed, and that in view of the character of the injury relief under clause (1) of Article 199 of the Constitution is essential in order to afford protection to which the aggrieved party is entitled, I would withhold it because the injury is attributable to an order passed by the Armed Forces acting in aid of Civil Power in terms of clause (1)of Article 245, unless I find that specific bar or limitation in this behalf has been placed in the other clauses of Article 199, or Article 245 or elsewhere in the Constitution itself. I have already observed, earlier that an embargo has been placed by the Constitution under Article 245 by the words 'subject to law'. This excludes any scope of an invasion by the Armed Forces which may amount to transgression of law and, therefore, no act on the part of the Armed Forces would be justified in the garb of aid to civil prower unless it is shown to be under the law.
159. ' The quantum of aid to be given and the manner in which this assistance is to be rendered by the Armed Forces, as a matter of constitutional duty, depends upon the nature of the direction issued by the Federal Government in this behalf. Therefore, no action in the garb of aid to civil power by the, Armed Forces is permissible, unless it is also within the four corners of the law.
160. ' So far as the Constitution itself is concerned, no encroachment in any form or manner upon any of its provisions or upon any of the constitutional organs set up under it is permissible at all. This is sufficiently clarified under Article 6 of the Constitution which reads as follows : "6.---(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional meats shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) Parliament shall by law provide for the punishment of persons found guilty of high treason."
161. ' Any person, including the members of Armed Forces, who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means would, therefore, be running serious risk and I need not elaborate this point further.
162. ' On this view of the case, let me now examine the contention raised by the :earned Advocate- General that by virtue of the mandate contained in the newly inserted clause (4) of Article 245 of the Constitution this petition must remain suspended for the period during which the Armed Forces are acting in aid of civil power in pursuance of that Article.
163. ' The challenge to the Constitution (Seventh Amendment) Ace, 1977 was made on the same lines as were urged in the case of Diwan Textile Mills Ltd. v. Pakistan (1) decided by a Full Bench of this Court.
164. I was member of that Full Bench and have already dealt with, in the judgment passed in that case, all the arguments that were advanced before us in this case. Later on the same type of arguments that have been canvassed before us in this petition came op for consideration before Supreme Court of Pakistan in Fedration of Pakistan v. United Sugar Mills Ltd. (2) and these were repelled, end the vices of the Constitution (Fourth Amendment) was upheld for the reasons which I will shortly reproduce. Mr. Naseem Farooqui as well Mr. Khalid Ishaque, however, sought to distinguish the law laid down by their Lordships of the Supreme Court in this case on the ground that Constitution (Fourth Amendment) was upheld on the ground that no substantive change of as brought about in the Constitution for the curtailment was only with regard to period for which an interim order passed by a. High Court was to remain operative, and no restriction had been placed on the High Court in making the final order. Learned counsel, therefore, submitted that the decision in the case of United Sugar Mills Ltd. Is no decision on the point that High Court's jurisdiction can be curtailed by the process of amendment. In this behalf learned counsel further submitted that Golaknoth's case (3) from the Indian jurisdiction has not been specifically disapproved by their Lordships of the Supreme Court, and the arguments which have been accepted by the Indian Supreme Court are yet available for challenge to the Constitution (Seventh Amendment).
165. ' Reliance was also placed upon certain observations made by the Supreme Court in this behalf in Islamic Republic of Pakistan v. Abdul Wali Khan (4) In order to appreciate this part of the argument, I may refer to the relevant passage in both these cases.
(1) PLD 1976 Kar. 1368 (2) PLD 1977 SC 379
(3) AIR 1967 SC 1943 (4) PLD 1976 SC 57 ' In the latter case Hamoodur Rehman, C. J. Observed as follows : "He has also liaised the question as to whether a provision of a Constitution relating to a fundamental right could at all be made so as to abridge or take away that right. We are told that the Supreme Court of a neighbouring country by a majority of six to five actually took such a view in the case of Golak Nath v. State of Punjab (AIR 1967 SC 1943 but this view was modified subsequently by a larger Bench by a majority of seven to six in the case of Kesavanauda v. State of Kerala AIR 1973 SC 1461 to the extent that "while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest." The minority of course, took the view that the power to amend is "wide and unlimited" and that the power to amend includes the power to repeal. The minority view in the rest mentioned case is in line with the decisions of that Court prior to 1967 vide: Shankarl Prima v. Union of India AIR 1951 S 0 458 and Sajjan Singh v. State of Rajasthan AIR 1965 SC 845 but it is unnecessary for us to enter into this controversy, as this Court is committed to the view that "the judiciary cannot declare any provision of the Constitution to be invalid or repugnant" to that national aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted in a manner different to the one prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution," ride State v. Ziaur Rehman PLD 1973 SC 49. Even otherwise, as conceded by Mr. Pirzana himself, the amendment effected in Article 17 in 1974 was neither a total abrogation of the right to form a political party nor in any manner an unreasonable restriction of such a right ; its validity is not open to question. We entirely agree. No such wide right can be conceded as would tend to destroy the very existence of the country.
166. ' Indeed no country in the world gives such a right in an unlimited form as has been pointed out by Mr. Pirzada himself by reference to the Constitution and laws of various countries including the U. S. A. And Great Britain."
167. ' In United Sugar Mills Ltd's case, the following augment was advanced on the basis of Golaknath's case :- "That having regard to the general scheme of the Constitution providing for tracheotomy of powers between the three principal organs of the State viz. The Executive, the Legislature and the Judiciary Articles 238 and 239 in Chapter XI of the Constitution cannot be read as conferring upon the Parliament plenary or unfettered power to so amend the Constitution, that one organ should be able to trench upon the field assigned to another. This limitation according to learned counsel is inherent in what he described as the 'juristic philosophy' of the Constitution."
168. ' This argument was repelled by the Supreme Court in the words of Muhammad Gul, J. As under :- "This brings me to consider the first limb of argument of learned counsel for the petitioner concerning the vires of the two provisions of the Amending Act set out in the beginning. Learned counsel, however, did not assail the amendments on the larger ground as was done in Golaknath's case decided in the Indian Jurisdiction. In that case a narrowly divided Supreme Court ruled that the Indian Parliament lacked the power to amend Part HI of the Indian Constitution which provides for Fundamental Rights. Ho wever. The majority view in that case was modifide later hi the case of Kasavnuda (AIR 1973 SC 146 again by a narrow majority. In Pakistan this Court in the case of Dane Rehmaet PLD 1973 SC 41 has however firmly laid down the principle that a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as 'national inspirations' or in 'abstract concept' so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra constitutional instrument. In the instant case, the two amendments are not questioned for want of competency or any other formal defect.
169. ' Several other points as were raised before us in the present case were also argued, and the following portion of the Tudgment may also he reproduced "The argument however, is that the two amendments have made serious inroad in the judicial power of the High Courts and therefore the principle of separation of powers has received a jolt. It is however, not disputed that power of making final decision remains with the High Courts and transferred to the Executive. Even the power to afford interim relief has not been entirely taken away; its operation has been curtailed to sixty days or until the final decision whichever be earlier.
170. No precedent case has been cited from local or any foreign jurisdiction in which in similar circumstances, a law much less a constitutional amendment has been struck down. On the other hand, it is common knowledge that laws relating to the recovery of public revenues are generally very stringent. In many cases right of appeal against assesment is conditioned on prior payment of the assessed tax.
171. ' It is also important to observe that our Constitution, like many other modern written Constitutions, does not provide for rigid separation of powers. Indeed there is no direct provision in that behalf except that the Constitution by various provisions provides for the setting up of the principal institutions for the exercise of the sovereign powers of the State in the appointed field. In actual practice in all modern Governments, separation is only functional to subserve the practical necessity of an efficient and enlightened Government by providing for checks and balances to avoid abuse of public power. Nowhere, so far as I am aware, the principle is pushed to is logical son lusion so as to create watertight compartments within the Government. On the subject of "The Separation of powers." "in Willoughby on the Constitution of the United States. Volume 3, 2nd Edition in Paragraphs 1061 and 1062 it is observed "1061. While, as has been said, the principle of the separation of powers has generally been accepted as binding in our systems of Constitutional jurisprudence-State and National-the practical necessities of efficient Government have prevented its complete application. From the beginning it has been necessary to vest in each of the three Departments of Government certain powers which, in their essential nature, have not belonged to it. Thus, to mention only a few of the more evident examples, the Courts have been given the essentially legistative power to establish rules of practice and procedur, and the executive power to appoint certain officials, sheriffs, criers, bailiffs, clerks, etc. The executive has been granted the legislative power, and the judicial right of pardoning ; the Legislature has been given the judicial powers of impeachment, and of judging of the qualifications of its own members and the Senate, the essentially executive power of participating in the appointment of Civil officials. . .
172. 1062. Thus it is not a correct statement of the principle of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may constitutionally exercise acy power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fail within its division of governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate functions.
173. ' In the United Kingdom which is a parliamentary democracy there is no strict separation of powers between the Executive and the Parliament. The reigning monarch who is the Chief Executive and an integral Dart of the Parliament is no more than a ceremonial head by convene tion, which has acquired the sanctity of law. He acts on the advice of his ministers wbo are members of the Parliament and Heads of their Departments. Being in the majority in the Parliament, they effectively control it by threat of dissolution. Thus de facto, the executive authority is exercised by the Ministers who are responsible to the Parliament which in turn is under their control.
174. ' A singular peculiarity in the British judicial system is that the Lord Chancellor is the head of judiciary in England. At the same time he is an elected member of the Parliament and an important member of the Cabinet. It is indeed remarkable that on the one hand he presides over the highest Court in the country and on the other he joins in the Cabinet discussions to formulate policy decision of the Government some of which may be open to judicial scrutiny. This will be a taboo elsewhere.
175. ' In Pakistan although the superior Courts are established to perform judicial functions, yet, as in the United States, they have the power to appoint their own staff and frame Rules of procedure. Again much of the legislation is done by the executive by Ordinances, although it is primarily the business of the legislatives Again in one significant respect the federal executive authority has been abridged under the Constitution and has been entrusted to a newly created institution called "the Council of Common Interests." It is a body quite apart from the Federal executive, (See Articles -153-156). The administration of matters falling in Part II of the Federal Legislative List (Railways, mineral oil, natural gas etc.) and Item 34 of the Concurrent List (electricity) are entrusted to the Council of Common Interests. This is a body consisting of the representatives of the Federal Government and the four Provinces. An dispute arising between one or more Provinces inter se or between the Federation or a Province regarding aforesaid subjects is preferable to the Parliament in joint session for final decision. This Constitutional arrangement also abridges the original jurisdiction of the Supreme Court under Article 184 and corresponding new power essentially quasi judicial in character has been conferred on the Parliament in joint sitting."
176. 'Mr. Yahya Bakhtiar, learned Attorney-General, on the other nand, heavily relied upon the decision of the Supreme Court in the cases of Asma Jilani, Ziaur Rehman and United Sugar Mills Ltd. For the submission that this Court has been set up by the Constitution itself and can even be abolished by the process of amendment prescribed under the Constitution In this behalf learned Attorney- General quoted the following passage from State v. Ziaur Rehman (1)
177. "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution ; that it derives its powers and jurisdictions from the Constitution ; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean. Even if that particular provision is a provision seeking to oust the juisdiction of this Court.
178. ' This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by ' abolishing the Court itself."
179. ' Learned Attorney-General submitted that in the case of United Sugar Mills Ltd. Their Lordships of the Supreme Court have reiterated the same position by holding with reference to the case of Ziaur Rehman that constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes states as "national inspirations" or "abstract concept" so long the provision is passed by the competent Legiskture in accordance with the procedure laid down by the Constitution.
180. ' I have expressed my views on the subject in the case of Dewan Textile Mills Ltd., and would reiterate the same in spite of what has been argued in the present case. So far as the broad argument advanced by Mr. Naseem Farooqui and Mr. Khalid Ishaque on the basis of Golaknath's case are concerned, I may firstly mention that in that case it was eld, as Muhammad Gul, J. Has observed in United Sugar Mils Ltd.'s case, that the Indian Parliament lacked jurisdiction to amend part III of the Indian-Constitution which enshrines the Fundamental Rights guaranteed ray that Constitution. Such a situation has not arisen in the present case before us. There seems to be, however, force in the contention that the larger question based on the Indian Supreme Court decision in Golak nath case has not been decided by the Supreme Court. Learned Attorney- General sought to rely upon the observations of the Supreme Court in Ziaur Rehtran's case just reproduced that by the amendatory machinery contained under Article 239, the superior Courts can be altogether abolished. I do not feel myself persuaded with due respect to learned Attorney- General, to agree with him. It seems obvious to me that the observations made by Hamoodur Rehman, C. J. In the passage on which learned Attorney-General places reliance, his Lordship was describing the nature of 'Judicial power' vis-a-vis the "jurisdiction", and Law has not been laid down by our Supreme Court in
(1) PLD 1973 SC 49 ' terms of Article 189 of the Constitution to the same effect as in Golaknath's case by the Indian Supreme Court. Such a question was not even raised before their Lordships and in my opinion the observations of the Supreme Court were directed to highlight the difference between what is meant by 'Judicial power" and what "Jurisdiction" connotes.
181. ' Moreover, if learned Attorney-General is correct, in the proposition asserted by him that the Supreme Court has laid down in Zia-ur-Rehman's case that the superior Courts set up by Constitution can be altogether abolished by the process of amendment, then there was no need for the Supreme Court to make the observations in Abdul Wall Khan's case later on in the passage quoted be me from that judgment that "no such wide right can be conceded as would lead to destroy the very existence of the country. Indeed no country in the world gives such a right in an unlimited form as has been pointed out by Mr. Pirzada himself with reference to the Constitution and laws of various countries including the U. S. A. And Great Britain.
182. ' Learned Attorney-General also relied upon the decision of the Supreme Court in United Sugar Mills Ltd.'s case, but even in that case, Muhammad Gul, J. Noted, and I must say that it was not without significance, that "learned counsel, however, did not assail the amendments on the larger ground as was done in Golaknath's case decided in tee Indian Jurisdiction."
183. ' I have, however. Ventured, with all my humility, to discover the intention behind the observations made by their Lordships of the Supreme Court in the passages of their judgments on which reliance was placed by learned Attorney-General, and would rather leave this point to be determined in a suitable case, and confine myself to the decision in regard to the problem that has been posed before us under the Constitution (Seventh Amendment) Act, 1977.
184. I may firstly deal with the nature and extent of curtailment, if any, of High Court's jurisdiction envisaged by the Constitution (Seventh Amendment) Act, 1977. It would be at once noticed that the bar contained in the newly added clause (3) of Article 245 is on the exercise of any jurisdiction by a High Court under Article 99 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 that Article. There can, therefore, be no room for a doubt that Constitution (Seventh Amendment) Act, 1977 does affect High Court's jurisdiction under Article 199. The real question then is whether it is permissible to do so by means of a Constitution amendment in the manner prescribed by the Constitution itself in Part XI under Article
239. It is nobody's case that the Constitution (Seventh Amendment) Act, 1977 has not been processed in accordance with the machinery provided by Article 239 the question, therefore, is whether there is any inherent restriction in the body of the Constitution which would preclude the scope of Amendment introduced by Seventh Amendment. It Dewan Textile Mills' case I have already taken the view that the vices of the Fourth Amendment of the Constitution in so far as it affected the jurisdiction of the High Court under Article 199 is not open to challenge. In this behalf, I had firstly examined the nature of curtailment of High Court's jurisdiction, and let me, therefore, examine the Constitution (Seventh Amendment) Act, 1977 from that point of view in the first instance.
185. It is only obvious that the expression "for the time being" in claus4 (3) of Article 245 suggests temporary nature of the period for which there- jurisdiction of the High Court under Article 199 is intended to be curtailed. That period is to last so long as the Armed Forces of Pakistan are to act in aid of civil power under a direction issued by the Federal Government under that Article. It is amply clear that the Armed Forces are to act in aid of civil power so long as they may be called upon by the Federal Government under the direction issued under this Article, and thus the embargo placed by the Constitution (Seventh Amendment) Act, 1977 is, by its very nature, temporary in character.
186. ' I have already referred to the position under English Common Law wherein use of Military Forces to act in aid of civil power for temporary purposes for the period so long as this aid is necessary is fully justified, and in such events civil Courts' function in certain jurisdiction is suspended. There are instances e. g. Section 8 of the United States Constitution where provisions to this effect have been incorporated in the Constitution, for, it may well be necessary even for the civil Courts-a part of civil power-to seek aid of the Armed Forces in execution of their own authority ; the normal civil power being incompetent to perform this function for a multitude of reasons.
187. ' In the event of the machinery of the civil power having failed in part, and the requirement of Armed Forces to act in aid of civil power being thus essential to the very existence of civil power, including civil Courts themselves, it is quite possible that there may be total failure of the civil Courts' own function under the Constitution. Instances are not wanting when, due to curfew imposed, the functions of the civil Courts have been suspended, In such cases even the complaints of violation of law are necessarily to be examined after the reopening of the Courts. "Where civil power is deposed, suspended or paralysed by domestic disturbances" Muhammad Munir, C. J.
188. Observed in Muhammad Umar Khan v. The Crown (1) "the Military are entitled to step in the void but these writers (most constitutional writers) are equally clear in their opinion that while so acting the legality or excitability of any action taken by the military will be judged by "necessity" and that such judgment will lie with the civil Courts ex post facto."
189. The curtailment of civil Courts jurisdiction on the failure of civil power to operate due to domestic disturbances beyond its control and the Militia called in to execute the Laws of the land is an accepted position in many Constitutional jurisdictions, and if the Constitution (Seventh Amendment) Act, 1977 has just brought in what is otherwise accepted in the parallel systems of basic laws governing State and indeed what finds place in certain Constitutions, I do not see how an argument is available that the power of superior Courts in Pakistan has been trampled upon by th newly added clause (3) of Article 245 to the extent that having regard t the general scheme of the Constitution providing for trichotomy of powers, the Judiciary has been offended to the extent which is not permissible by the inherent juristic philosophy of the Constitution. I have already held that the encroachment upon High Courts' jurisdiction under Article 199 is a stopgap arrangement meant to last so long as the Armed Force: are acting in aid of civil power. I may add here that by its very nature the curtailment of High Courts' jurisdiction cannot be of lasting nature, for, the express words "for the time being" signify beyond doubt that the Makers of the Constitution did not mean to deprive High Court of it
(1) PLD 1953 Loh 528 ' jurisdiction for any length of period which may be viewed as permanent or even semi-permanent.
190. It is also inherent in the scheme of Article 245 that the direction to call upon the Armed Forces to aid civil power is to last for such period as is essential and the newly added clause (4) further fortifies the view that the curtailment of High Court's jurisdiction is for a short and temporary period as any proceedings in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power is to remain suspended for the period during which the Armed Forces are so acting. I am, therefore, clearly of the view that the provisions contained in the newly added clause (3) of Article 245 by their very nature are of temporary character, and the Makers of the Constitution taking into consideration the position that has prevailed under English Common Law considered it fit, in their wisdom, to insert these provisions in our Constitution.
191. I have already noticed in the earlier part of this judgment that use of Armed Forces in aid of civil power in case of failure of the machinery of the civil power may be needed by civil Courts themselves for the purpose of performing their own functions, or otherwise the function of the civil Court may itself be threatened. I am, therefore, clearly of the view that the F provisions contained in the newly added clauses of Article 245 do not offend against the inherent framework of the Constitution.
192. ' Mr. Khalid Ishaque however submitted that Constitution in Article 2 declares that 'Islam shall be the State religion of Pakistan ; and therefore Islamic Law is a part and parcel of the Laws of Pakistan, and has to be enforced as much as the statutory laws. Learned counsel further submitted in this behalf that Article 2 is self-enforcing in its operation ; and, in the alternate, advanced the argument with reference to Article 4 that the word law' in Article 4 must be read so as to include Islamic law.. Learned counsel went on to further argue that 'Martial Law' is against the very concept of Islamic Jurisprudence which inherently envisages proper adjudication of disputes, after grant of full opportunity of hearing for which no scope exists under Military System of Justice. As an example, Mr. Khalid Ishaque referred to Military Administrative Order No, 1 wherein it is provided that a violate of curfew order is to be shot at sight In such cases, learned counsel argued, the question of grant of an opportunity of hearing does not arise.
193. ' Mr. Khalid Ishaque fortified this part of his argument by pointing out that 'Just se' is a cardinal principle of Islam and any deprivation of power of the superior Courts of doing justice in any particular sphere would be against this basic principle of Islam, He further contended that military Justice is not, properly speaking, nice balance of rights and liabilities since the emphasis of Martial Law Courts is on discipline and they are meant to carry out the will of the Military Commander.
194. ' In order to appreciate the arguments advanced, I may at the outest point out that Article 2 is incorporated in the 'Introductory' Part of the Constitution and as far as its language is concerned, it merely conveys a declaration. The question arises as to the intention of the Makers of the Constitution by declaring that "Islam shall be the State religion of Pakistan".
195. Apparently what the Article means is that in its outer manifestations, the State and its Government shall carry on Islamic symbol. This Article does not even profess that by its own force, it makes Islamic Law to be the U law of the lard. Otherwise, there would have been no scope for separate provisions being incorporated in a separate Part of the Constitution in Part IX under the Heading 'Islamic Provisions'. Article 227 declares that all existing laws shall be brought in conformity with the Injunctions of Isla as laid down in the Holy Qur'an and Sunnah, and that no law shall be enacted which is repugnant to such Injunctions. The effect to these provisions is, however, to be given only in the manner provided in Part IX. This position has been clarified in clause (2) of Article 227. The Council of Islamic Ideology has been set up under the Constitution to make recommendations as to the measures for bringing existing laws I a conformity with the Injunction of Islam and the stages by which such measures should be brought into effect, and under clause (4) of Article 230 period of seven years has been fixed for the submission of the Report by the Council, and a further two years' period is given for the enacting of laws in respect of Report so as to enable the Parliament an Provincial Assemblies to conside the Report. There is, therefore, no scope for the argument that Islamic Laws are to be enforc xi, in their entirety, by virtue of Article 2 itself or a read with Article 4; these laws are therefore operative in the manner provided by the Constitution.
196. ' I feel fortified in this view by the latest observations of the Supreme Court of Pakistan on this subject in Federation of Pakistan v.United Sugar Mills Ltd (1) at page 405 which is to this effect "But this wider connotation of the word "law" was rej=ected later in the majority decision in F. B. All v.
197. The State (PLD 1975 SC 506) wherein according to the view of the Majority the expression "law" in Article 4 of the present Constitution which is in pari materia with Article 2 of the 1962 Constitution, means only "positive law". The majority in that case relied on the dictum in the case of Alma Mani (PLD 1975 SC 66) wherein after an elaborate discussion Hamoodur Rahman, C. T. Reached the conclusion that connotation of the word "law" is restricted to positive law, that is to say, a formal pronouncement of the will of a competent law-giver and did not include what were mere legal precepts or theories.
198. ' I have further considered this aspect of the matter and remain confirmed in my view that the term "law" as used in the above constitutional provisions has also been used in Article 8 of the Constitution, in contradistinction with any "custom or usage having the force of law" and must therefore be given the same limited connotation in Article 4 as well. For instance the expressions like "proper law of the contract", "law merchant", "Maritime Law", "Law of Domicile" and "the Practice of the Court", which are essentially in the nature of usages or practices observed in the relevant fields and are well recognized by Courts of law. In the event of any question as to the exigence of any one of these, it has to be proved by evidence as a fact. It will, in my humble opinion, be erroneous to equate the se practices or usages or customs with a statute law or to attach to them any higher validity."
199. ' This should serve as sufficient answer, but I may add that one of us pointed out to Mr. Khalid Ishaque that punishments under the Islamic Law can only be imposed if the offence is established in accordance with the rules of evidence provided under that system, and pointed out that since the existing laws of Pakistan make no provision in that behalf, it is not possible
(1) PLD 1977 SC 397 ' to inflict punishment, according to Islamic Laws, or to enforce the whole body of the Islamic Laws.
200. ' Mr. Kbalid Ishaque frankly conceded that the Islamic Law cannot be enforced, as a whole, immediately, as this would require legislation to this effect. He, on the contrary, pointed out that the whole body of Islamic Laws, as it is known today, was not enforced in the early period of Islam; indeed it was developed later on, and that Islamic Law was applied in stages.
201. ' In view of what I have already expressed, I find no substance in the submissions made on this aspect.
202. I may also, at this stage, deal with the argument advanced before us a to the meaning that is to be given to the declaration contained in the Preamble to our Constitution that 'Sovereignty, over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the People of Pakistan within the limits prescribed by Him is a sacred trust. Mr. Khali Ishaque supported this by making special reference to Article 2 of the Constitution which contains the declaration that "Islam shall be the State religion of Pakistan." He submitted that our Constitution must be so construed as to contain the basic framework of Islamic State and Islamic jurisprudence. This argument was directed to support the contention that the width and the substance of the power of amendment vested in the Parharnen under Article 239 is, therefore, not wide. Enough so as to amend th Constitution in the manner which is contrary to the very basic concepts of Islam.
203. ' I have already dealt with the concept of Sovereignty in Diwan Textile Mills' case, but would like to add that the word "Sovereignty" is often employed in Constitutional instruments in a political rather than in a strictly legal sense. Austin defines independent political society as consisting of a Sovereign. The relation between subject and Sovereign is one of power "The Sovereign cannot be said to have legal rights against his subjects and to that extent, it cannot be said that the Sovereign is bound by any legal differences. In the United Kingdom the Sovereignty of Parliament is a dominant characteristic of their political Institutions. A. V. Dicey in 'Law of the Constitution', states that a Roman Emperor, a French King or a Russain Czar was a Sovereign, in the strict legal sense of that term. He had absolute legislative authority. Any law made by him was binding, and there was no power in the Empire or Kingdom which could annul such law.
204. ' However, the argument raised before us precisely was that the authority vested in the Members of the National Assembly is a sacred trust imposed upon them, and to be exercised within the limits prescribed by Almighty Allah. Reply to this argument, I think, has been rightly given by Mr. A. K. Brohi in his famous Book 'Fundamental Law of Pakistan', at page 50, which in its appropriate context reads from page 49 as under i 'If the term 'sovereignty' be thus used, the sovereign power under the English Constitution is clearly 'Parliament'. But the word 'sovereignty' is sometimes employed in a political rather than in a strictly legal sense. That body is 'politically' sovereign or supreme in a state the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Loth, or perhaps, in strict accuracy independently of the King and the Peers, the body in which sovereign power is vested. For, as things now stand, the will of the electorate, and certainly of the electorate in combination with the Lords and the Crown, is sure ultimately to prevail on all subjects to be determined by the British Government. The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country. But this is a political, not a legal fact. The electors can in the long run always enforce their will. But the Courts will take no notice or the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. The political sense of the word 'sovereignty' is, it is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essentially different, and in some part of his work, Austin has apparently confused the one sense with the other (See Dicey's Law of the Constitution, p. 73).
205. ' Applying the distinction between the political and legal sovereign within the framework of power relations established by our Constitution, if we disregard for the time being the assertion contained in the preamble, namely that all sovereignty belongs to Allah, one could say that (a) the legal sovereign is the Constitution itself, in that the several organs and authorities established under its mandate are controlled in the exercise of the power vested in them by the very limitations contained in the Constitution, and that (b) the political sovereign is the 'people' who in the exercise of their 'constituent power' can change the Constitution itself. The juristic implication of the declaration contained in the first paragraph of the preamble, namely, that the sovereignty over the entire Universe belongs to Allah Almighty alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him as sacred trust, will be dealt with in the last chapter of the present study. But au ce it to say that this declaration is totally irrelevant to the judicial interpretation of our Constitution and this, for the obvious reason that even this declaration is made by the very people of Pakistan who have given to themselves the present Constitution (See the last paragraph of the preamble). Besides, the true nature of authority to be exercised by the people of Pakistan within the limits prescribed by Him, is incapable of being judicially interpreted and determined for the simple reason that there is no indication anywhere in the Constitution as to the nature and extent of the limits imposed thereon to which reference is made, nor again is there a reference to the means by which these limitations are to be enforced as operative part of the constitutional processes that have been sanctioned by our Constitution."
206. ' I have underlined the passage in some part in order to show the reply to the contention raised by Mr. Khalid Ishaque. I, however, feel no further necessity to do for the reason that the argument stands foreclosed by the Rule laid down by the highest Tribunal in the country.
207. 'In Asma Jitarsi's case, Hamoodur Rahman, C. J., noticed this argument in these words : "In any event, if grand norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grand norm is enshrined in our own doctrine that the legal sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. This Resolution has been described by Mr Brobi as the "corner stone of Pakistan's legal edifice" and recognized even by the learned Attorney-General himself" as the bond which binds the nation" and as a document from which the Constitution of Pakistan must draw its inspiration". This has not been abrogated by any one so far nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an "Say, '0 Allah, Lord of Sovereignty. Thou givest sovereignty to whomsoever Thou pleases and Thou takes away sovereignty from whomsoever Thou pleasest, Thou ezaltest whomsoever Thou pleases and Thou absent whomsoever Chou pleases. (Pt. 3, Ch. 3, Al 'Imran, Ay. 27).
208. ' The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Govrnernor carries out the utterance of it."
209. ' This trust concept of Government filtered into Europe through Spain and even as early as 1685 John Locke rejected Hobbes' leviathan and propounded the theory that sovereignty vested in toe people and they had the right not only to decide as to who should govern them but also to lay down the manner of Government which they thought to be best for the common good.
210. Government was, therefore, according to Locke, essentially a moral trust which could be forfeited if the conditions of the trust were not fulfilled by the trustee or trustees, as the case may be, ' The trustees under the concept of ours are referred to as "those who are in authority among you"
211. (Pt. 4, Ay. 60; Al-Nisa, p. 207) which again negates the possibility of absolute power being vested in a single hand, for, the reft-rence is clearly to a plurality of persons and to an authority properly constituted by law,"
212. ' These observations were explained by His Lordship in Ziaur Rehman's case in these words t "This does not, however, mean that the body having the power of framing a Constitution is "omnipotent" or that it can disregard the man's date given to it by the people for framing a Constitution or can frame a Constitution which does not fulfill the aspirations of the people or achieve their cherished objectives, political, social or economic. These limitations on its power, however, are political limitations and not justiciable by the judiciary. If a Constituent Assembly or National Assembly so acts in disregard of the wishes of the people, it is the people who have the right to correct it. The judiciary cannot declare any provision of the Constitution to be invalid or repugnant on the ground that it goes beyond the mandate given to the Assembly concerned or that it does n A fulfil the aspirations or objectives of the people. To endeavor to do so would amount to entering into the political arena which should be scrupulously avoided by the judiciary.
213. With political decisions or decisions on questions of policy, the judiciary is not concerned. Its function is to enforce the Constitution and to see that the other organs of the State confine themselves within the limitations prescribed therein ; but in doing so it must remember that it too is subservient to the Constitution and its power to hear and determine is subject to the limitations contained therein and can be exercised only with regard to the sunjects over which it is given jurisdiction and in the manner prescribed. By virtue of the fact that it has been set up as that organ of the State which is to adjudicate upon disputes, it has the right to exercise its "judicial power" to hear and determine even in cases where its own jurisdiction is in question. If there is a dispute on the point as to whether it has or has not jurisdiction over a certain subject-matter, it can certainly hear and determine that dispute, even if the result be that it had to hold that it has no jurisdiction.
214. ' In implementing either the Constitution or in the law, it has also the right to interpret as to what the law means or what the Constitution says. The learned Attorney-General does not dispute that the Judiciary has this right of interpretation but upon Article 281 by even the majority of the Judges in the High Court is incorrect, because, if the provisions of this Article have taken away the jurisdiction of the High Courts to question the validity either of the Martial Law Orders and Regulations validated thereby or of the acts done or purported to be done in exercise of the powers given under such Martial Law Orders and Regulations, then even questions of mala fides or absence of jurisdiction become irrelevant. If there is ouster of jurisdiction, the ouster is complete and no exceptions can be made to it."
215. ' I have already referred to the last pronouncement of their Lordships of the Supreme Court in United Sugar Mills Ltd.'s case and feel no further necessity of making any observation of my own.
216. ' This brings me to another part of the arguments advanced by Mr. Nasim Farooqui, and in this Mr. Khalid Ishaque fully supported him, that the Constitution (Seventh Amendment) is ultra vires as it affects 'judicial power', and thereby offends against the basic fabric of the Constitution-the theory of separation of powers-which is enshrined in the Constitution, ' This argument is based on the distinction which the Courts have always made between what is meant by 'Judicial Power', and what 'Jurisdiction' connotes.
217. ' In my opinion, this part of the arguments rests concluded by the pronouncement of the Supreme Court of Pakistan particularly in Asma Jilani's case and United Sugar Mills Ltd.'s case.
218. ' I, therefore, see no necessity to deal with this subject further, for, I am bound by the opinion expressed on the subject by their Lordships of the Supreme Court. I may, however, mention that in United Sugar Mills Ltd.'s case, Mr. Justice Muhammad Gul has already dealt with it at great length on the aspect of the theory of the separation of powers in so far as it has received recognition in our Constitution. Precisely the same argument was canvassed before the Supreme Court in that case as was argued before us in this case; and I have, therefore, no other option but to follow their Lordships of the Supreme Court and reject the argument.
219. The argument on the basis of interpretation of the language contained in clause (3) of Article 245 was. Lastly advanced that in so far as the action which fall outside the scope of "aid" to civil power are concerned, the jurisdiction of the High Court under Artical 199 is not barred. This argument, on the bare reading of clause (3), cannot b sustained at all. It is to be noticed that under Article 199 itself the exercise of jurisdiction by the Higb Court is confined to the limits of its territorial jurisdiction. The newly added clause (3) states that a High Court shall not exercise any jurisdiction uncle Article 199 i,e, 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. The curtailment of the jurisdiction is clearly in relation to an area, and this area extends to the area in which the Armed Forces of Pakistan are for the time being acting in aid of civil power in pursuance of Article 245. It is, therefore, the area which has been carved out of the territorial jurisdiction of the High Court in respect of which exercise of jurisdiction by th Court under Article 199 is meant to be precluded. On the clear language of clause (3) of Article 245 there is no escape from the conclusion that th nature of the bar or curtailment of the jurisdiction is territorial and the territory is the area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245.
220. The expression 'in relation to. ...Area' also appears in clause (7) of Article 247 of the Constitution which reads as follows :- "(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Parliament by law otherwise provides ' Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day."
221. ' In construing this provision their Lordships of the Supreme Court in Manzoor Elahi v. Federarion of Pakistan (1) had no doubt in their mind that it constituted 'a restriction on the jurisdiction of the judicial organ of the State in relation to these areas, subject to the clarification contained in proviso to the said clause'. In respect of similar provision contained in clause 5 of Article 223 of the Constitution of 1962 the Supreme Court in Superintendent. Land Customs v. Zewar Khan (2) observed as fellows t "The Court has already held in the case of /and/ Ahmad and another.
222. ' The State (Criminal Appeal No, 11 of 1968) that the High Court has no jurisdiction to issue a writ under Article 98 of the Constitution to the tribal areas. But in this case since the truck and the goods were brought to Peshawar Cantonment, which was within the jurisdiction of the Court, no legitimate objection could be taken to the High Court issuing a writ on the authorities concerned within their jurisdiction to release the truck from such seizure. Since that order would have had to be carried out within the territorial limits of the jurisdiction of the High Court it could have been lawfully issued. It is only if the order was sought to take effect in a territory outside the limits of the jurisdiction of tee High Court that the question of non-maintainability of the writ could arise."
223. The expression In relation to an area' as regards High Court jurisdiction under Article 199 of the Constitution, in clause (3) of Article 245 of the Constitution, therefore, relates to the area, as a whole, and not to particul acts therein which may or may not be strictly in accordance with law.
224. ' It would be relevant to mention here that recourse to aid of the Armed Forces is provided for under certain other Enactments, such as, sections 129 and 130 of the Code of Criminal Procedure. It is obvious that the makers of the Constitution did not mean to exclude High Court's jurisdiction unde Article 199 in cases where Armed Forces of Pakistan may be called in under other laws of Pakistan to act in aid of civil power. I am, therefore, clearly of the view that the words "in which the Armed Forces of Pakistan are, fo the time being, acting in aid of civil power in pursuance of Article 245" connote the extent of the area in respect of which High Court is preclude from exercising any jurisdiction under Article 199.
225. ' So far as the present position in relation to this petition is concerned, the exclusion of areas by virtue of the direction of the Federal Government under Article 245 is confined to Karachi Division and the Revenue District of Hyderabad in which the Armed Forces of Pakistan are acting in aid of civil power. It is, therefore, not open to this Court to exercise any jurisdiction under Article 199 of the Constitution in respect of these areas only, and so long as the Armed Forces are acting pursuant to the direction issued by the Federal Government under Notiacation No, S, R. O. Pub/77 dated 21st April, 1977.
226. ' Therefore, this Petition must remain suspended by virtue of the provision contained in clause (4) of Article 245 for such period as the Armed Force are acting in aid of civil power in pursuance of Article 245 in Karachi Division and the Revenue District of Hyderabad.
227. ' Before I part with this judgment, I feel that I will be failing in my duty if I do not record a note of appreciation of the assistance rendered to us by Mr. Nasim Farooqui, learned counsel for the petitioner, Mr. Ghulam Ali Memon, learned Advocate-General who appeared for the Provincial Government, respondent No, 1, Mr. Shah Jamil Alam, learned Deputy Attorney-General who appeared for respondents 2 and 3, Mr. Yahya Bakhtiar learned Attorney-General to whom notice was issued for assisting us and Mr. Khalid Ishaque learned counsel who appeared as amicus curiae. The performance of each of them was very valuable and it is difficult to distinguish who among them rendered better assistance.
228. ' AOBA ALI HYDER, J.-I have had the benefit of going through the seasons recorded by my Lord the Chief Justice. 1 agree with his Lordship, that the instant petition will remain suspended till the Armed Forces remain in operation, in Karachi Division and the Revenue District of Hyderabad. But as I could not persuade myself to the interpretation of Article 245 of the Constitution, as amended, I would like to add a few words of my own.
2. Suffice it to say, that, because of the public agitation, which had gathered momentum in the wake of the elections to the National Assembly, and the alarming dimensions that it had assumed, the Federal Government, on the 21st of April 1977, had directed the Armed Forces, "subject to law, to act in aid of the civil power" in such area, as may be specified by the Chief Minister of a Province. By another notification of even date, the powers conferred on the Federal Government, by the rules made under subsection (4) of section 3 of the Defence of Pakistan Ordinance, were to be exercised by the Chief of the Army Staff and an officer subordinate to, and authorised by him in this behalf in any area, where the Armed Forces were acting in aid of civil power. By a separate notification, the jurisdiction cf even the Supreme Court, to enforce Fundamental Rights provided for, in Articles 9, 10, 14 (1), 15, 16, 17, 18, 19, 23, 24 and 25 of the Constitution, and all proceedings pending in any Court for the enforcement of, or involving the determination cf any question of any of the said Rights, were suspended for the period, during which the Armed Forces of Pakistan were so acting within those areas, in aid of civil power. In quick succession, the proclamation of emergency, which was subsisting from the 23rd of November 1971, came to be varied inasmuch as after the words "threatened by external aggression", the words "and by internal disturbance beyond the powers of a Provincial Government to control" were added. Then, two further things happened. The first of these was the promulgation of Ordinance No, XVIII of 1977, by which a number of offences under the Pakistan Penal Code, Pakistan Arms Ordinance, Explosive Substances Ordinance, and the Defence of Pakistan Ordinance, or any rules thereunder, and the High Treason Act etc. Came to be added in paragraph 3 of clause (d) of section 2 of the Army Act. The other occurrence war the imposition of an indefinite curfew in Karachi, which proved to be the harbinger of what is called Martial Law.
3. Aggrieved by these happenings, and the fears it aroused, the petitioner who is a practising lawyer on the rolls of this Court, filed the instant petition, on the 26th of April 1977, seeking a nun- her of reliefs, which need not be detailed here.
4. The day the matter was called vp in Court, to be precise on the 29th of April 1977, came Act No, X of 1977, to further amend the Army Act, and Act No, XI of 1977 to further amend the Defence of Pakistan Ordinance. Section 15-A of the latter Act empowered ered any officer of the Armed Forces of Pakistan, cr any officer of the Security Force, or other Armed Forces, engaged in enforcing compliance of the order prohibiting persons from moving out of doors, to "shoot at sight any person contravening the order, so as to cause death of, or any other harm to such person, if in his opinion, which will be final, it is necessary to do so".
5. A number of counsel, known for their erudition and forensic skill were appointed as amkus curiae to assist the Court in the resolution of the intricate issues involved in the petition. For certain reasons, with the exception of Mr. Khalid M. Ishaq, we lost them all, at the very outset. We are very much indebted to Mr. Khalid Ishaq for the valuable assistance tendered to us. After a beginning had been made, on the 16th of May, there was the announcement through various news media, about the Constitution Seventh Amendment) Act, and the proceedings had to be adjourned, in the absence of any authentic text. Inter alia, the Act in question amended Article 245 of the Constitution. The said Article was renumbered as clause (1), and three clauses came to be added thereto, having a bearing on the jurisdiction of this Court, under Article 199. The question which stared everyone in the face was, as to whether the proceedings had to be suspended, or we could adjudicate upon it. After the conclusion of the addresses by the counsel for the parties, Mr. Khalid Ishaq an; the learned Attorney-General, by a short order, we unanimously announced that the petition remained suspended during the period, the Armed Forces called in aid of Civil Powers under Article 245 remained operating. However, I am of the opinion that the exercise of our jurisdiction under Article 199, is not totally y suspended, even within the area, in question, I e.
229. Karachi Division and the Revenue District of Hyderabad, where the Armed Forces have been called I aid of the Civil Power, under the provisions of Article 245.
6. The first challenge to the amendments introduced to Article 245, was that it bad been brought about by an Assembly and a Government, which was not legitimately elected, and had come to power, by means of massive rigging in the elections. Hence such an unrest and turmoil throughout the length and the breadth of the country. It was further contended that if the elections were a sham and an arranged affair, then the National Assembly, and even the Prime Minister, I.e. The Chief Executive of the Federal Government, had no right to be there, and any amendment in the Constitution brought about by such a House, does not exist in the eye of law. I am afraid, the contention can hardly stay out and I need not dilate on this aspect of the matter, as I am in full agreement with what has been observed by my Lord the Chief Justice.
7. The next contention was that the amendments were unconstitutional inasmuch as these abridged the powers of the High Court, thus sapping the very foundation of the trichotomy of power, which is the very basis of our Constitution. Our Constitution does have provisions for amendment in the Constitution, as to be found in Articles 238 and 239. Subject to the limitations to be found therein ; there are no further hitches in the way. It is no secret that at the time of the fuming of the Constitution, Article 199, had (ply two clauses. The third clause was inserted by the Constitution (First Amendment) Act No, XXXIII of 1974. But that related to the terms and conditions of service of members of Armed Forces as a result of which amendment, such disputes could not be raised in the High Court. Later, came clauses 3-A to 3-C. Then, there was clause 4, according to which ad interim orders in certain cares, having the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest, or of impeding the assessm ent or collection of public revenue, could be made, after fulfilling certain stringent conditions. Then, there was clause 4-A, according to which ad Interim orders made by a High Court on an application made to it, questioning the validity or legal effect of any order made, proceeding taken, or act done by an authority or person, which had been made, taken or done connected with assessm ent, or collection of revenue, was to become inopeietive on an expiration of a period of sixty days, unless the case was finally decided, or the interim order was withdrawn, by the Court earlier.
8. Clauses 4 and 4-A of the said Article were the subject-matter of a dispute in Dewan Textile Mills Ltd. v. Pakistan and others (0, and it was found that the Constitution (Fourth Amendment) Act was not ultra vires of the Constitution, so far as it amended Article 199. Clause 4 (A) of the said Article came up for adjudication in Federation of Pakistan v. United Sugar Mills Ltd. (2). Muhammad Gul, J.
230. (as then his Lordship was) referred to the earlier judgment iv State v. Ziaur Rehman (3), wherein it was held that a constitutional provision could not be challenged, on the ground of being repugnant to what are sometimes stated as "national inspirations" or an "abstract concept", so long as the provision was passed by a competent Legislature in accordance with the procedure laid down by the Constitution, or a Supra-Constitution instrument. Even the contention, that the amendments made a serious inroad in the judicial power of the High Courts, and therefore the judicial power had received a serious jolt, was repelled. His Lordship referred to two cases from Indian Jurisdiction and observed that even the view in the case of Golaknath and others v. State of Punjab and others (4), in which it was held, that the Indian Parliament lacked the power to amend Part HI of the Indian Constitution, which provided for Fundamental Rights, had been overruled in the subsequent case of Kasavnuda Bharti v. State of Kerala (5).
9. It is true that in the case of the United Sugar Mills, the arguments that Articles 238 and 239 cannot be read as conferring upon the Parliament, plenary or unfettered power to so amend the Constitution, that one organ would be able to trench upon the field assigned to the other, thus nullifying the juristic philosophy of the Constitution, was not gone into. But that was done in the two cases from Indian jurisdiction. As the copies of these judgments have now been made available to us, let us see, as to how it fared there.
10. The Indian Constitution remains unique in one way. There is no article in any of the Constitutions of the World, similar to Article 13 (2) of the Indian Constitution. Under Article 368, it empowered the Parliament to amend the Constitution by the Legislative process, bat subject to Fundamental Rights. It was found in Golaknath's case that in view of the prohibition on tampering with Part HI, the amendments suspending the Fundamental Rights were unconstitutional. The power to amend, it was found, could not be equated with the power to break or destroy the Constitution; the Legislature could not deconstitute or reconstitute as it liked. The reservations were made through Article 13 (2), to plug the loophole such as existed in section 48 of the Weimar Constitution. The conclusion reached by the maj )rity was that Fundamental Rights were outside the amendatory process. Hidayatullah, J., opined that if the amendments sought to abridge or take away Fundamental Rights, a constituent body will have to be convoked.
11. In Kasavnuda's case, however, it was found that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution, such as, the essence of the freedom of speech and expression (including the freedom of the press) and assembly, or association, and movement, and residence throughout India, and the freedom to choose one's vocation. Nor could the country afford to diicard its secular character, the protection of the minorities and depressed classes and the very Rule of law embodied
(1) PLD 1976 Kar. 1368 (2) PLD 1977 SC 397
(3) PLD 1973 SC 49 (4) AIR 1967 SC 1943
(5) AIR 1973 SC 1461 ' in the principles of equality and safeguard of individual's life and personal liberty against arbitrary action. Sikri, C. J , however, observed: "Applied to Fundamental Rights, it would mean that while Fundamental Rights cannot be abrogated, reasonable abridge neat of Fundamental Rights can be effected in the public interest it is of ceurse for the Parliament to decide whether an amendment is necessary. The Courts will not be conceraed with the wisdom of the amendment". Teat was the majority view, and Golaknath's case was overruled.
12. All that need be added is that Articles 238 and 239 of our Constitution are free from such fetters, and even Article 8, dealing with Fundamental Rights, only says "The rights conferred by this Chapter, shall not be suspended except as expressly pravided by the Constitution". There is an entire chapter on Emergency, which once it is proclaimed-and it is in existence, since November 23, 1971-the Fundamental Rights which may be specified therein, would stand suspended. According to clause (2) of Article 236 of the Constitution, the validity of any Proclamation, or, Order made under Part X, shall not be c sled in question in any Court. That such a Proclamation of Essence was a matter of subjective satisfaction of the President had been upheld by the Supreme Court, even in cases, before the present Constitution came into existence.
13. True that Judiciary is one of the three main pillars of our State, and has been oiled the administrator of public will. But in the case of Miss Asma Jilani v. The Government of Punjab and others (1), Hamoodur Rahman, C. J. (as then his Lordship was) held, in no ambiguous words that the Courts, which were the creature of the Constitution, could have only that much jurisdiction as it chose to confer upon them. Similarly, in the case of The State v. Ziaur Reiman, it was held, that once the ouster of Court's jurisdiction is in clear and explicit terms, the Courts will not have the power to review any executive act, performed even without jurisdiction and even the mala fides will not be open to judicial scrutiny.
14. It is true that even under Articles 232 and 234-the first dealing with the arising of an emergency on account of war, internal disturbance etc. And the latter dealing with proclamation in case of failure of machinery in a province-the framers of the Constitution had left the powers, vested in, or exerciseable by a High Court inviolate ; on the other hand it was expressly stipulated that the provisions of the Constitution relating to High Courts would not be suspended in whole or part. But the argument advanced by the learned Attorney-General was that what has happened was that a part of the jurisdiction of the High Court within a specified area had been temporarily suspended and such jurisdiction can be abridged or suspended ; actually even under the Constitution, some other tribunals and forums had been created, which were outside the supervisory jurisdiction of the High Courts. He, therefore, contended that the judicial power still remained unaffected, and the jurisdiction exerciseable by the High Court under Article 199 had been partially suspended, and that too for a good cause, which was to meet a grave and threatening situation.
15. It was, however, contended by Mr. Khalid Ishaq and also by Mr. Nasim Farooqi, that the amendment would be unconstitutional, as these conflicted with Articles 2 and 4 of the Constitution, which were still there.
231. 166 Mr. Khalid Ishaq maintained that Article 2, which says that Islam shall be the State religion of Pakistan, is couched in mandatory form and has not been made subject to Article 227, which roads as under "227.-(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens."
17. In a nutshell his argument was that in Article 2, the word State has not been defined. But the definition of State in Article 7 would not serve the purpose adequately. However, if the preamble of the Constitution is examined, the word State in the larger sense would include even the people and the Constitution, and in the narrower sense it would include the various organs of the State which exercise public authority. The word Islam, when used in connection with the governance of a people, and the institutions established for that purpose like the caliphate, the judiciary etc. Would mean those segments of Islam, which appertain to exercise of public authority. And when one looks in that direction, the Sharia as contained in the Qur'an and the Sunnah will be binding on Muslims- the rulers and the ruled alike. Ho further maintained that justice was the dominant theme of Islam, as will be apparent from Surahs (42.15) (3'3,26) (6.90 and 91) (5.8) (16.90) (7.29) (57.25) and others, The Holy Prophet, who was justice incarnate, in his epoch-making Khutba on Hajitul Wide inter alia had also saidt "0 people, your lives, your honour and your properties, are sacrosanct till the Day of Reckoning 1 they are as sacred as this day, as this month in this Holy City."
18. He also argued that the grant of 'Mulk' or 'Khilafat' was to the Ummat as a whole and not to an individual, as will be borne out from Surahs (2:124) (5,20) (22.41) (6.166). In that context, he also referred to some Khutbas of Hazrat Abu Baker (Kanzul Ummat) Vol. 15, p. 2282), Hazrat Umar (Kanzul Kharaj), by Abu Yusuf, page 117), and Hazrat All (Kanzul Ummat by Ali Muttaqi, Vol. V, p. 258), where they had taken pains to emphasize that they (tee believers) were to help them, if they commanded them in obedience to Allah, and if a command involved disobedience to Allah, then there was no obedience to anyone, including them.
19. These principles of Sharia and Sunnah, according to Mr. Khalid Ishaq did not need any institutions or codes, but were self-executing. These were on a higher pedestal, and loftier in content, than even the due process of law, as to be found in America. Full effect has, therefore, got to be given to the tenets and principles of Sharia and Sunnah, as enjoined by the preamble to the Constitution and Article 2. It will be, according to him, a tragedy, too deep for tears, if for example during a curfew hour an innocent life was cut short by a member of the Armed Forces, and the High Court remained just a placid spectator of such a phenomenon, on the mere ground, that its powers stood clipped. In Islamic polity, no person has exercised a power to take some one's life without trial and without a right to question the authority Sureh (5.32). Reference W43 also made by him to Mawardi's Chapter on Rebels in Alikan-al-Sultaniat and how they were, treated in Islam,
20. I agree that these are the goals which we aspire to reach. But our laws are differently oriented our Society is not based on itaqwa', as a people we are still not prepared to receive its chastisements, and therefore not qualified to partake all its bliss. It is to be appreciated that there will necessarily be strains and stresses in the implementation of the tenets of Sharia, as our laws and procedure are eased on altogether different sources and concepts. Besides, our Courts are Courts or precedents. We still swear with the wisdom of the egislature. Therefore, if the National Assembly chooses to amend the Constitution, suspending certain rights, temporary though, or abrogating it altogether, if it is so can, we will find it difficult to sly that it cannot be given effect, or, in other words, the amendment is unconstitutional.
21. Similarly, Article 4 cannot be of any assistance. It starts with the words "subject to law", and therefore it has to adjust itself according to circumstances, or live is peace with the existing laws.
232. 2'. The position, therefore, that emerges is that Article 245, as amended, remains to reckon with.
233. Then what about its import ? Article 245, which is renumbered as clause (1), says that the Armed Forces shall, under the direction of the Federal Government defend Pakistan, against external aggression and threat of war and subject to law, act in aid of civil power, when called upon to do so. But it was subject to law. There are only three Articles dealing with the Armed Forces. The forces are raised and maintained by for President, subject to law. That is Article 243. Under Article 244, they have to take their oath in the Form set out in 3rd Schedule, which is as under do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law "
234. ' The last is Article 245, and again that is subject to law. Subject to law, therefore would mean the Supreme or Organic law i,e, the Constitution, with all the existing laws of the land, including the Army Act, as amended, and also the Defence of Pakistan Ordinance and the Rules framed thereunder. Being a member of the Armed Services, does not put them above the law.
23. Under the common law, which in principle was followed in this sub-continent, it was the duty of every citizen, as of the members of the Armed Forces, to do their duty in case of riot, insurrection, or, insurgency. With the two traumatic experiences of 1958 and 1969, the framers of the Constitution took care to say that the members of the Armed Forces would take up the challenge, only when called in aid, under the directions of the Federal Government. Acting in aid occurs in Article 190 of the Constitution; the executive and judicial authorities acting in aid of the Supreme Court, that is they are always at its disposal to preserve its z supremacy and that should be enough to dispel all doubts about it meaning. t, therefore, presupposes that the civil power is still there. It is neither supplanted nor effaced out. It is meant to be preserved an invigorated through the instrumentality of the Armed Forces. It has not been suggested that the Administrator can on his own transfer, dismiss or promote, say any of the Deputy Commissioners of Karachi. They are on the scene, because in an hoar distress or widespread disturbances, the civil power finds itself unable to cope up with the situation, without the assistance of people, who are better trained to meet such a threat. The occasion for the call is to safeguard the civil power, and other jobs they might be entrusted to do, would be incidental, as under the provision of the Defence of Pakistan Ordinance or its Rules. It, therefore, stands to reason that the Government should be solicitous enough to remove all hurdles in their way for quelling the disturbance or disorder, so that normalcy is restored at the earliest. Sometimes delicate situation may arise if there is a Military tribunal, at cross purposes with the civil Courts of the Law. Such a situation arose in the case of Wolff Tone as referred in Muhammad Umar Khan v. Crown (1). Tone has been sentenced to death under the charge of High Treason. A Habeas Corpus Petition was moved in the Court of King's Bench, on the day he was to be executed. The ground urged was that Tone had no commission under His Majesty, and therefore no Court Martial Law could take cognizance of any crime imputed to him.
235. Lord Chief Justice Kilwarden ordered a writ to be instantly prepared. Mr. Curran, the counsel for the petitioner, expressed his apprehension that his client might be dead, while the writ was being prepared. The Lord Chief Justice sent the Sheriff to acquaint the Provost-Marshal that a writ was under preparation to suspend the execution. While the men in the Court sat with baited breath, the Sheriff returned and informed the Lord Chief Justice that he had been to the barracks, but the Provost-Marshal said that he must obey Major Sundys, and Major Sundys said that he must obey Lord Cornwallis. While all this was going on, the man, who had gone to serve the hibeas corpus returned and told the Court that General Graig had refused to obey it. Hearing this, the Lord Chief Justice directed the Sheriff to take the body of Wolfe Tone into custody. Major Sundys and the Provost-Marshal were also to be taken into custody and the order of the Court was to be shown to General Graig. The sheriff returned having been refused admittance at the barrack. However, he further informed the Court that Tone was not in a condition to be removed, as the night before, he had slit his throat. As for the custody and the rest, he added, that he could not meet the parties.
236. General Graig had, however, sent tee Surgeon, who had attended on Tone. He was sworn and gave all the details about the condition of the patient under sentence of death, adding that his removal would mean certain death. The Lord Chief Justice thereupon directed a rule to be made for suspending the sentence, which was to be served on the proper persons. However, the patient, before he could be fit enough to be removed, died as a result of the injury to his throat. Thus the clash was averted.
24. To pick up the thread, the Army Act has been amended. Its ambit has been enlarged, even beyond, what passed muster in the case of F. B. All v. The State (2). The Armed Forces have also been delegated powers, under the Defence of Pakistan Ordinance and a number of other laws. If they carry on their assignments, within the scope of the authority delegated to them, or purport to function thus, as I understand it, the exercise of the jurisdiction of the High Court within the Karachi Division and Revenue District of Hyderabad will remain suspended. The word in relation to, I venture to think, means nothing more. It defines the limit of their authority or assignment, and that is all. It is not suggested and cannot be suggested that it travels farther. As mentioned earlier, that accords with reason. That is clear from grammatical construction also. The amendment was for a specified purpose and not to spite the High Court.
(1) PLD 1953 Lah. 528 (2) F L D 1975 SS 506 ' It was also not to leave the populace here groping in a state of abject helplessness. It was not an occupied foreign territory in a theatre of War where the will of the Commander was to be the Supreme Law. The Administrator cannot get the status of supreme Pgislative, judicial, and executive authority. Actually our Constitution has avoided the use of the term Martial Law of any sort. All their actions are because of the "necessity" focused in a certain direction, and with a certain objective before them. That is what they were called for. So long as the members of the Armed Forces work within the scope of their authority, or, within its pith and salter cc, the High Court, will not have the jurisdiction to intermeddle in their affairs. The other clauses of Article 245 have to be road with clause (1). But if a member of the Armed Forces took upon himself to order an estranged wife to rejoin the roof of her husband, or for example used his authority to assist a lender to recover his loans from a fellow citizen then he is not functioning subject to law, and therefore the mischief of the amendment will not be attracted. Similarly, it cannot be spelled out that the jurisdiction of the High Court will be suspended in a case arising out of a dispute between an employer and an employee, from the Labor Courts, or an order of say a Deputy Land Commissioner. However, as the allegations on which the petition is founded, pertain to the functions of the members of the Armed Forces, while dealing with the disorder in this area of their operation, pursuant to a direction from the Federal Government, I agree that the proceedings stand suspended.
237. ' I MAHMUD, J.-The present petition under Article 199 of the Constitution seeks to challenge inter alia, the legality of the imposition of Martial Law is the Kara.Hi Division and Hyderabad Revenue District and of all the actions, orders and instructions issued by the Armed Forces. While the Full Bench was seized of these questions and before it could rule on them, the Constitution (Seventh Amendment)
238. Act, 19i7, was promulgated on 16-5-77, by which, inter alia, Article 245 was amended. Therefore, Mr. Yahya Bakhtiar, learned Attorney-General urged that under the amended Article 245 (4), the present petition shall remain suspended for the period during which the Armed For are acting in aid of the Civil Power in pursuance of Article 245 of the situation. After hearing learned counsel for the parties and the amicus curiae, Mr. Khalid Isbaque, we passed a short order in Court on 21-5.77 unanimously holding that the petition shall remain suspended for the said period, for reasons to be recorded later.
239. ' 1 have had the advantage of reading the judgment of my Lord, the Chief Justice, recording his reasons for the order announced by us in Court. My Lord has set out fully the facts giving rise to this petition as well as repro duced the pertinent legal instruments and the submissions of the respective counsel. I respectfully agree with the conclusions reached by my Lord on the submission put forward by counsel and do not, therefore, wish to burden this judger t with the repetition of the same. However, as I have taken a slightly different view on the interpretation of Article 245 (3) of the Constitution, which purports to oust the constitutional jurisdiction of the High Court under Article 199, I will confine my judgment to this aspect of the case.
240. ' The main and ultimate question relates to the scope and extent of the ouster of the High Court's jurisdiction under Article 199 by Article 245 (3) of the Constitution which was added by the Constitution (Seventh Amendment) Act, 1977. Underlying this question were other important issues which were raised by Mr. Nasim Faruqui, learned counsel for the petitioner and Mr. Kbalid Ishaque, learned amicus curiae challenging the validity of the Seventh Constitutional Amendment itself, on the grounds, inter alia, that the elections to the National Assembly held on 7th March 1977 were allegedly massively rigged and the National Assembly, Al hich passed the Bill, was not validly constituted and that the constitutional amendment, in so far as it abolished the constitutional jurisdicition of the High Coutt in the specified areas has altered the basic structure of the Constitution and, therefore, the amendment was void. Article 2 of the Constitution, which states that Islam shall be the State religion of Pakistan, was invoked and it was urged that doing justice is a cardinal principle of Islam and if superior Courts are deprived of the opportunity of rendering justice to citizens, the amendment excluding jurisdiction in the specified areas, would be void.
241. These contentions have been repelled forcefully by my Lord, the Chief Justice in his judgment and, with respect, I am in full agreement with the same. In particular, I agree that the petitioner cannot collaterally challenge the elections to the National Assembly in view of the bar of Article 225 of the Constitution, as well as for other good reasons discussed by the learned Chief Justice in his judgment I also agree that there is no implied limitation on the constituent power of Parliament to amend the Constitution contained in Articles 238 and 239 on the supposed ground that suspension of Jurisdiction of the High Court amounts to destruction of judicial power which, because of the basic trichotomy of sovereign powers under the Constitution, vests in the Judiciary. The observations of their Lordships of the Supreme Court in State v. Ziaur Rahman (1) and Federation Pakistan v. United Sugar Mills Limited (2) are binding on us. There is presently no longer any scope for raising such contentions. In the last-mentioned case Muhammed GuI, J. Recently observed:- "In Pakistan, this Court in the case of Ziaur Rahman PLD 1973 SC 49 has however firmly laid down the principle that a constitutional provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "national inspiration" or an "abstract concept" so long as the provision is passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a supra constitutional instrument."
242. ' Incidentally, the same view has been taken in the Full Bench decision in Dew an Textile Mills Ltd. v.
243. Pakistan (3) in which the leading judgment was written by my Lord, the Chief Justice. I also agree that until existing laws are brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sulu ah and effect given thereto in the manner provided in Article 230 (4), no objection can presently be taken to validity of the constitutional amendment as violating Article 2 of the Constitution.
244. ' It is well-known to many systems of public law that the Armed Forces of a country may be called in aid of civilian authorities by a sovereign Government to quell internal disturbances and to protect the lives and property of its citizens in an emergency when the police power of civil authorities is unable to cope with the situation. The form and the extent of the force which the Armed Forces may use to restore law and order and maintain security, depends entirely and is justified only by necessity and in extreme situations, where the emergency is great, it may even lead to suspension of civilian Government and the assumption by the Armed Forces of all functions of Government, including legislative, executive and judicial, in the area of the emergency. The Civil Courts may be suspended and substituted by Courts
(1) PLD 1973 SC 49 (2)