MALIK MUHAMMAD QAYYUM, J.--- This is an appeal under section 3 of the Law Reforms Ordinance, 1972 against the elaborate judg--ment delivered by our learned brother Abdul Shakoor-ul-Salam, J. (as his Lordship then was) whereby he accepted the Constitutional petition filed by the respondent and declared that the Ordinance promulgated on 9-6-1963 enabling the appellant to take over the property belonging to the respondent was not a law in the terms in which it was understood 'generally'.
2. The necessary facts are that the respondent was a claimant displaced person. He was transferred Evacuee Property bearing No.96-A, Upper Mall, Lahore. He paid its transfer price of Rs.96,000 and was issued Permanent Transfer Order on 1-2-1960. Later on Permanent Transfer Deed was also issued in his favour. On 16-11-1961.
3. It appears that the house was in possession of Col. Mukhtar Hussain, the then Military Secretary to the Governor. According to the respondent, the occupant was asked to pay rent who in turn asked the respondent that the property be sold to him. The respondent refused to do so. His case is that Col. Mukhtar Hussain managed to have Martial Law Order No.115 issued by the Martial Law Administrator Zone 'B', Lahore, directing the Provincial Government to acquire the house. The respondent challenged that order by filing Writ Petition No. 121 of 1963. On 9-6-1963, the Governor of Punjab promulgated Ordinance No. XXV of 1963, acquiring the house which was approved by the Provincial Assembly on 16-6-1963. The respondent was returned the amount paid by him which he received under protest. He challenged the vires of the aforesaid Ordinance by filing the Constitutional petition out of which this appeal has arisen, on two major grounds, firstly, that the legislation was mala fide and had been promulgated under the undue influence exerted by the Military Secretary to the Governor, who wanted to purchase the house himself; secondly, that, in any case, the Ordinance or Act did not qualify as law as it has no general applicability. It can at the most the considered as an executive fiat. It was also urged that the house was worth about Rs.16,00,000 and has been acquired for Rs.86,000. The Constitutional petition was allowed by the learned. Single Judge, who, overruled the contention that the legislation was mala fide but came to the conclusion that the Ordinance did not qualify as law as it was passed for the purpose of- acquiring one property of a single individual and was not general in nature.
4. We have heard Mr. Muhammad Ashraf, learned Assistant Advocate-- General, Punjab and Mr. Abid Hassan Minto, learned counsel for the respondent. At the very outset, the learned Assistant Advocate-General pointed out that mala fides cannot be attributed to the legislature and no law passed by it can be struck down on the ground of mala fides.
5. So far as this contention of the learned Assistant Advocate-General is concerned, it may be noted that the learned single Judge had also come to the same conclusion and had repelled the plea of mala fides because the matter stands decided by the judgment of the Supreme Court of Pakistan in Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 in which it has been held that mala fides cannot be attributed to legislature.
6. It was next argued by the learned Assistant Advocate-General that the view taken by the learned single Judge that Ordinance No. XXV of 1963 was not a law is not well-founded. Although, it is difficult to define expression "law" but one characteristic which must be present before an instrument can qualify to be law is that it must contain rule affecting the entire class or section thereof and has not been made solely for one person or an individual without making a reasonable distinction.
7. In the case of Young v. Sun Alliance and London Insurance Ltd. (1976) 3 All E.R. 561) it was observed that:--- "There is one thing worth-mentioning that law is a rule of general application and not for one solitary phenomenon .... A particular Act of Legislature to confiscate goods of Titius or to attain him of high treason does not enter into the field of Municipal Law; for the operation of this Act is spent on Titius only, and has no relation to community in general it is rather a sentence than a law."
8. We tray also refer to the judgment of the Peshawar High Court in Nawabzada Muhammad Umar Khan (represented by his legal heirs) and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Pesh. 1 which appears to be on all fours. In that case Hayat Muhammad Khan Sherpao, acting as Martial Law Administrator Zone 'F' issued Martial Law Order No.47, whereby 237 shops belonging to the petitioner in that case were taken over. That Martial Law Order was challenged by the petitioner by filing a Constitutional petition which was accepted vide judgment reported as above. One of the contention raised before the Peshawar High Court was that since Martial Law Order has been issued in respect of a particular individual to take over his property, it cannot qualify to be a law. This contention prevailed with the Peshawar High Court. It is interesting to point out that one of the judgment relied upon by the Peshawar High Court was the judgment of this Court which is impugned in the present appeal.
9. The judgment of the Peshawar High Court was challenged in appeal in the case cited as Pakistan through Secretary Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased) now represented by Khawaja Muhammad Khan of Hoti and others 1992 SCMR 2450 and was dismissed by the Supreme Court of Pakistan. With respect to the question as to whether the instrument issued in that case wag law, the Supreme Court cited with approval, the following extract from a Treatise on the Constitutional Limitations by Thomas M. Cooley (English Edition Volume 11) at page 736:- "Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College case. By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon injury, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land."
The definition here given is apt and suitable as applied to judicial which cannot be valid unless they 'Proceed upon inquiry' and render judgment only after trial'. It is entirely correct also, in assuming that a legislative enactment is not necessarily the law of the land. The words 'by the law of the land', as used m the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory; and turn this part of the Constitution into mere consensus. The people would be made to say to the two houses. You shall de vested with the legislative power of the State but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words, you shall not do the wrong unless you choose to do it ('Due process of law' does not mean 'the general body of the law, common and statute as it was at the time the Constitution took effect.
For that would deny to the legislature, the power to change or amend the law in any particular.
Neither, on the other hand, does 'the law of the land' or 'due process of law' mean anything which the legislature may see fit to declare to be such, for there are certain fundamental rights, which our system of jurisprudence has always recognized, which not even the legislature can disregard in proceedings by which a person is deprived of life, liberty of property. "
10. As already pointed out, one of the judgment re led upon by the Peshawar High Court was the judgment which is the subject-matter of the present appeal and as the judgment of the Peshawar High Court it Nawabzada Muhammad Umar Khan's case (supra) was approved by the Supreme Court of Pakistan, we are of the view that it would be idle on this part of the appellant to raise the same issue. At the best, the Ordinance issues can be held to be a legislative judgment which the legislature is not permitted by the Constitution to pass as it would be encroaching the field reserved for the judiciary.