' MALIK MUHAMMAD QAYYUM, J.---The facts relevant for disposal of this petition are that the Government of West Pakistan invited tenders for the sale of Government Weaving and Finishing Centre, Shandara, comprising land, building, machinery etc., in June, 1968. Pursuant to aforesaid notice three parties including the petitioner submitted their tenders. The Government accepted the tender of petitioner and of which the petitioner company was duly informed on 5th August, 1968.
The petitioner deposited 25% of the sale price. The Government directed delivery of possession to the petitioner. However, before the delivery of possession could take place further proceedings were stayed by the Lahore High Court on 21st August, 1968 in Writ Petitions Nos.1665 of 1968 and 1365 of 1968 filed by rival tenders challenging the acceptance of tender of petitioner. These petitions were contested by the Government as well as by the petitioner. On 4th April, 1969, both these petitions were dismissed. The petitioner thereupon asked the Government to complete the delivery of possession and the transaction of sale.
2. In the meantime, Martial Law was imposed on 25th March, 1969. It appears that the Government at that time tried to wriggle out of its obligations and terminated the sale agreement. After protracted negotiation between the Government and petitioner an agreement was arrived at between the parties on 19th August, 1971, whereby the petitioner agreed to the cancellation of agreement subject to the right to claim compensation through arbitration. Mr. Justice (Retd.) Jamil Hussain Rizvi was appointed as sole Arbitrator to determine the compensation payable to the petitioner/company.
3. The Arbitration Proceedings commenced, but before the same could conclude, Martial Law Order 258 was promulgated on 2-4-1972 by the Martial Law Administrator, Zone 'C'. This Order was only meant for the case of petitioner and purported not only to cancel the sale in favor of petitioner but also nullified the arbitration proceedings.
4. The legality and validity of the aforesaid M.L.O. No,258 was impugned by the petitioner by filing this petition, which was admitted for regular hearing vide order, dated 30-11-1972. In the original petition, the petitioner had prayed as under: "that the M.L.O. 258 being without lawful authority may kindly be quashed and the proceedings pending before the Arbitrator may kindly be revived . "
' However, a C.M. No,254 of 1980 was filed by the petitioner for amendment of the relief in the following terms: "the petitioner may be ordered to put in possession on the basis that constructive possession had already been delivered and titled had passed, in any case, in the movable property."
' This application was allowed subject to all just exceptions on 15th January, 1980.
5. We have heard the learned counsel for parties and perused the record. In the written statement filed by the respondent, the agreement between the parties was not denied nor the fact that the tender of petitioner had been accepted and that later on the matter was referred to the Arbitrator.
The respondents have relied upon the Martial Law Order No,258 in question in support of validity of action taken by them.
6. The learned counsel for petitioner has contended that Martial Law Order No,258 issued by Mr. Ghulam Mustafa Khar, as Martial Law Administrator Zone 'C' as he then was, has no validity in the eye of law as it did not qualify as law. Reliance has been placed on the judgment of Humble Supreme Court of Pakistan in Pakistan v. Nawabzada Muhammad Umar Khan 1992 SCM R 2450.
7. We have gone through the authority cited by the learned counsel for petitioner and find that it is in all fours with the present case. In that case Martial Law Order No,47 was promulgated by Martial Law administrator Zone ' F ' , (N -W .F .P.), Peshawar, whereby the property of the appellant before the Supreme Court specified in column 2 of the Schedule to the Order was taken away and it was ordered that the property would vest in and become the property of the respective occupants thereof without payment of any consideration or compensation. The validity of this order was challenged by filing Constitutional petition before Peshawar High Court, which was accepted and it was held that the said Martial Law Order was void and of no legal effect. The Hon'ble Supreme Court was pleased to upheld this decision firstly on the ground that there was no justification or reason for issuance of Martial Law Order, secondly that the Martial Law Order did not find place within the scope, norms and hierarchy of even the Martial Law dispensations and thirdly the impugned Martial Law Order could not qualify even as a legislative judgment as it did not adjudicate or vindicate, but punished a person by transferring his property to others without any reason or occasion for it. It was held that the Martial Law Order was an executive fiat of the most arbitrary, unreasonable and ruthless character and without reason.
8. In the present case also no reason has been given by the respondents, which obliged Martial Law Administrator to issue Martial Law Order No,258, which in any case he was not competent to issue as held by Supreme Court in case of Nawabzada Muhammad Umar (supra). More importantly it is to be noted that this Martial Law Order was only issued in respect of one person i,e,, petitioner and purported to cancel the tender and 'also the agreement between the parties and also voided the arbitration proceedings. Such order could not qualify as law as declared by Humble Supreme Court of Pakistan.
9. In view of what has been discussed above, this writ petition is allowed and the Martial Law Order 258 issued by Martial Law Administrator Zone 'C' is declared to be void and of no legal effect.
10. We are, however, not inclined to grant alternate relief asked for in the amended petition about regularization of agreement between the parties with regard to sale of the Centre, but would direct that the arbitration proceedings in consequence of second agreement arrived at between the parties shall take place before an Arbitrator. Mr. Justice (Retd.) Jamil Hussain Rizvi, has since expired, therefore, with the consent of parties Mr. Justice (Retd.) Shafi-ur-Rehman is appointed as an Arbitrator. His fee for the present case is fixed as Rs,5,00,000 (Five lacs rupees only) to be shared equally by the parties. No order as to costs.