ABDUL HAYEE KURESHI, ACTG. C. J.-With the establishment of Military Courts under Martial Law Orders a crop of petitions came to be filed in this Court. One of the grounds that was common in each of these petitions was that Martial Law Order No. 4 promulgated by the Chief Martial Law Administrator on 5th July 19%7, was not a valid piece of legislation. Since the question was common to all the petitions this Full Bench was constituted to consider the following questions :- "(1) Whether Martial Law Order No. 4 (for the sake of brevity herein. After referred to as M. L. O. 4) is a valid piece of legislation ; and
(2) If M. L. O. 4 was a valid piece of legislation what is the extent and the nature of jurisdiction that a High Court can exercise while dealing with constitutional petitions challenging orders, findings and judgments of the Military Courts."
2. We bad invited all the Advocates appearing in these petitions to advance arguments and we heard Mr. Amjad Malik, Mr. Khalid Malik, Mr. Hanafi, Mr. Raja Muhammad Afsar, Mr. Munawar Ahmed Mirza and Mr. Jafri on behalf of the several petitioners. Mr. Muhammad Ahmed Mirza, Advocate- General of Baluchistan has appeared for the respondents namely the several Military Courts, the Deputy Martial Law Administrator, the Martial Law Administrator and the Chief Martial Law Administrator.
3. On the conclusion of hearing by a short order we had answered the first question in affirmative and in regard to the second question we had said that relief can be granted in cases whether there was non-compliance with the terms of relevant Martial Law Orders. The reasons for the answers presently follow.
4. Martial Law was proclaimed on 5th July 1977, and on the same day Martial Law Order No. 1 called the Laws (Continuance in Force) Order, 1977 was made and promulgated. This Martial Law Order serves as the corner stone of the Martial Law Administration in as far as it defines and demarcates the powers and functions of the relevant organs of the Government in the legislative, executive and judicial fields. The Constitution of 1973 was not abrogated but was held in abeyance. In spite of abeyance of the Constitution Clause (1) of Article 2 of the Laws (Continuance in Force) Order : Provided that "subject to this Order and any Order made by the President and any Regulation made by the Chief Martial Law Administrator", Pakistan shall be governed as nearly as may be, in accordance with the Constitution. Since the Courts are established under the Constitution and the same had been kept in abeyance, a necessity had arisen to provide continuance of functioning of Courts and for such purpose clause (2) of Article 2 of this Order provided that the Court already existing shall continue to function and to exercise their respective powers and jurisdiction. A proviso was however added to the effect that the Supreme Court or the High Court shall not exercise its jurisdiction as conferred by Article 199 of the Constitution. While clause (1) of Article 4 of the said Order imposed a prohibition on Courts and Tribunals to call or permit to be called in question the proclamation or any Order or Ordinance or any Martial Law Regulation or Martial Law Order made in pursuance of the Proclamation, clause (2) of the same Article provided that no judgment, decree, writ, order or process shall be made or issued by a Court against the Chief Martial Law Administrator or any Martial Law authority exercising power or jurisdiction under his (Chief Martial Law Administrator) authority. Article 5 of the same Order saved all the Laws, other than the Constitution, but provided for powers of the President to make adaptations in laws. This Article also provided for alteration, amendment or repeal of Laws by the competent authority.
Martial Law Order No. 3 was also made and promulgated on 5 July 1977, and its salient features relevant to this case are the following;--- "(a) The Chief Martial Law Administrator bad the powers to make or issue such Martial Law Regulations and Orders as he may deem fit, and
(b) A Martial Law Administrator of the concerned Zone could from time to time issue Martial Law Orders."
On the same day viz. 5th July 1977 Martial Law Order No. 4 was pro--mulgated to provide for establishment of Special Military Courts or Summary Military Courts having the powers to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under any law for the time being in force. This Martial Law Order also conferred powers on the Martial Law Administrator to direct that any case pending before a criminal Court may be transferred to a Military Court. The power of convening Military Courts was conferred on the concerned Martial Law Administrator, while the Special Military Courts were to follow the same procedure as that of Field General Court Martial under the Pakistan Army Act, the Summary Military Courts had to follow the same procedure as a Summary Court Martial under the Pakistan Army Act.
5. The main arguments of the learned Advocates appearing for the petitioners were :---- "(1) that the provisions of M L. O. 4 were in conflict with the provisions of clause 2 of Article 2 of the Laws (Continuance in Force) Order,
(2) that the establishment of Military Courts was in conflict with the judgment of the Supreme Court in the case of Begum Nusrat Bhutto v. The Chief of Army Staff etc. PLD 1977 SC 657 in which my Lord the Chief Justice of Pakistan had held that the Constitution of 1973 still remains the supreme law of the land ;
(3) that the Supreme Court of Pakistan having held that the superior Courts continue to enjoy powers of judicial review, to judge the validity of any act or action of the Martial Law authorities in the light of principles underlying the law of necessity, establishment of Military Courts was open toth serious challenge as it was not necessary to establish such Courts because the ordinary Courts were functioning ; and
(4) that M. L. O. 4 was ex-facie discriminatory piece of legislation."
6. The first point that deserves examination is in regard to the submission that Martial Law Order No. 4 conflicts with the provisions of clause (2) of Article 2 of the Laws (Continuance in Force) Order.
The learned Advocates had attempted to argue that since the Laws (Continuance in Force) Order preserved the existence and powers of the Courts, Military Courts could not be established. The argument was further expanded on the premises that there being different Courts for trial of same kind of offences there was a likelihood of a Martial Law functionary picking and choosing cases which should go before the Military Courts or the ordinary Courts, nay even the prosecution agency or police could utilise M. L. O. 4 at their whim and march off accused persons either before a Military Court or an ordinary Court without following any principle. It would thus seem that this point overlaps the 4th point which was raised on the basis of discrimina--petition. It will therefore be profitable to take up both these points together. It may be added that an argument was also raised before us that clause (1) of Article 2 of the Laws (Continuance in Force) Order conferred the powers of promulgating an order only on the President and the Chief Martial Law Administrator had only the powers to make Regulations. It would seem that Martial Law Order No. 4 being a Martial Law Order is sought to be attacked on the ground that the power to promulgate an order vests only in the President and the Chief Martial Law Administrator having promulgated M. L. O. 4, the said order was invalid.
7. It has not been seriously contended before us that the Chief Martial Law Administrator has both executive legislative authority, though on the other hand it was stated before us that Laws (Continuance in Force) Order which is also an order of the Chief Martial Law Administrator was a valid piece of legislation. This stand appears to have been taken because to such extent the Supreme Court of Pakistan in the case of Begum Nusrat Bhutto has clinched the issues. In fact had it not been for the saving of laws and powers of the Court in the Laws (Continuance in Force) Order, perhaps a vacuum might have existed. The Laws (Continuance is Force) Order, 1977 is almost on the same lines as parallel documents promulgated in 58 and 69 when the two previous Martial Laws were promulgated. It would therefore be idle to say that Laws (Continuance in Force) Order. Is not a valid document.
8. In regard to the conflict between clause (2) of Article 2 of the Laws (Continuance in Force) Order and M. L. O. 4 it is difficult to assimilate the argument that since the Courts already existing could continue to function, Military Courts could not be established. We have known of various Special Courts and Tribunals established for almost the same purposes and exercising identical jurisdiction in different modes. It cannot be said that an authority who is competent to establish a Court cannot establish a Court merely for the reason that ordinary Courts exist. If that were so the objects which generally underlie the establishment of special Courts would lx defeated even though the same may be laudable. It is common knowledge that very often special Courts are established for quick disposal of cases or even by reference to the nature of cases or the persons involved in those cases.
To fortify the arguments reference may be made to the Special Tribunals constituted under the Defence of Pakistan Rules, which Tribunals had the powers to try and punish persons for contravention of Defence of Pakistan Rules even though such contraventions were triable by the ordinary Courts. A number of instances could be marshalled to establish the concept of establishment of Special Court or trial at different forums for the same offence specially when fundamental rights stand suspended. The learned counsel have attempted to argue mainly on ground of discrimination but to such extent it is not difficult to repel the argument by reference to the fact of fundamental rights having been suspended. At this juncture reference may also be made to the instructions issued by the Martial Law Administrator of Zone `D'. The instructions which are reproduced below clearly show that in transfer of cases some sound principles have been set down and the same are followed. This would by no means prevent the authorities to transfer any case at his will but the policy laid down seems to avoid discrimination. The relevant policy letter reads as follows :----- "The prosecution Agency in Baluchistan is directed that as soon as the incomplete or complete challans are ready for submission for trial in cases pertaining to smuggling, anti-social activities or any other offences of heinous nature requiring expeditious disposal for advancing the welfare of the people and the purposes for which Martial Law has been promulgated, be placed before D. M. L.
A. S. Who will decide whether proceedings or trial should be initiated in the Military Courts constituted under C. M. L. A.'s Order 4 (1) or be referred to the ordinary criminal civil Courts. In case he decides to send it in Military Court, he will take cognizance and forward the same to the relevant Court."
10. It has also been faintly argued before us that establishment of Military Court operates as an amendment of existing laws because when the forum for trial of an offence is changed, by necessary implication the provisions creating new forum operates as an amendment of the existing laws which prescribed the previous forum. It is not difficult to repel this argument also because the Chief Martial Law Administrator has legislative authority and by Article 5 of the Laws (Continuance in Force) Order the existing laws were continued in force until altered, amended or repealed by a competent authority. That competent authority on reading of clause (1) of Article 5 of the said Order is a different person from the President because the President is also mentioned in the same clause of the said Article. The competent authority in such circumstances is the Chief Martial Law Administrator . . . . .
11. Before leaving this point it is necessary to consider an argument advanced by Mr. I. H. B. Hanafi, Advocate by reference to clause (1) of Article 2 of the Laws (Continuance in Force) Order. It will be of benefit to reproduce the said clause which reads as follows :------- "Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall subject to this Order and any Order made by the President and any regulation made by the Chief Martial Law Administrator be governed as nearly as may be, in accordance with the Constitution."
Mr. I. H. B. Hanafi, Advocate has urged that on analysis this clause would appear to mean that the country was to be governed in accordance with the Constitution, subject to three riders namely Laws (Continuance in Force) Order, any Order made by the Chief Martial Law Administrator. He has urged that an order can be promulgated only by the President and the Chef Martial Law Administrator could only make regulations. The argument may seem to be attractive on the surface but when the different aspects of the same are examined it would appear to be hollow.
Clause (1) of Article 4 of the Laws (Continuance in Force) Order makes a mention of Martial Law Regulation as well as Martial Law Order to be immune from challenge before a Court. Similarly several Martial Law orders which are in the nature of legislation have been enacted and are being acted upon.
"In strictness it is not law at all but rather a cessation of all Municipal Law as an incident of jus bill and because of paramount necessity, it depends, for its existence, operation and extent, on the imminence of public peril and the obligation to provide for the general safety. It is essentially a law or rule of force, a purely military measure, and in final analysis is only the will of the officer commanding the Military force. As the offspring of necessity it transcends and displaces the ordinary laws of the land, and it applies alike to military and non--military persons and is exercisable alike over friends and enemies, citizens and aliens."
It would on analysis seem that Martial Law is essentially law or rule of force.
Salmond has categorized three kinds of Martial Law and one of the kinds is that by which in times of war the army governs the realm which is in derogation of civil law. My Lord the Chief Justice while dealing with the concept of present Martial Law in the case of Begum Nusrat Bhutto at page 713 of the report has also recognized that the authorities who had over thrown Mr. Z. A. Bhutto could have governed by a decree or by a Martial Law regulation etc., once they had seized power by the extra---constitutional step."
While on this point we had invited Mr. I. H. B. Hanafi, Advocate and other Advocates appearing before us to take note of and explain the circumstance emerging from restoration of jurisdiction of this Court under Article 199 of the Constitution by a Martial Law Order made by the Chief Martial Law Administrator. It may be re-called that by the proviso in clause 2 of Article 2 of the Laws (Continuance in Force) Order, a High Court had been deprived of its powers under Article 199 of the Constitution and it was after two days, viz.; on 7th July 1977, that by an order of the Chief Martial Law Administrator that jurisdiction was restored. We told Mr. Hanafi that if the Chief Martial Law Administrator had no powers to make and promulgate a Martial Law Order, the result would be that Laws (Continuance in Force) Order would be invalid or in any case the order of the Chief Martial Law Administrator restoring powers under Article 199 of the Constitution would be invalid.
Mr. Hanafi, Advocate was at pains to answer this question but he stated before us that the Chief Martial Law Administrator had the powers to make and promulgate an order in matters which were of constitutional nature but he did not have the powers to enact sub-constitutional Legislation by an order. It is difficult to comprehend such an argument because if the Chief Martial Law Administrator could amend the Constitution itself, it would be frivolous to assume that he could not bring about Legislative amendments of a sub-constitutional nature.
12. Coming to-the next point in regard to the Constitution being supreme as held by the Supreme Court in the case of Begum Nusrat Bhutto, one must say that this sentence alone cannot be torn from the context to enunciate a principle. My Lord the Chief Justice at page 715 of the report in the case of Begum Nusrat Bhutto has drawn out correct legal position. My Lord has stated that the Chief Martial Law Administrator validly assumed owners by means of an extra-Constitutional step and within the scope of law of necessity even the 1973 Constitution could by amended by him. The conclusion therefore is that the Constitution of 1973 is supreme and is in existence except to such measure that the same has been amended. If that is so one can have no difficulty in answering the question that the Chief Martial Law Administrator was fully empowered to establish Military Courts.
My Lord the Chief Justice has also observed that all such acts or Legislative measures which could have been made under 1973 Constitution fall within the scope of powers of the Chief Martial Law Administrator'. If that is so it is difficult to see why establishment of Military Courts could be struck down because even under the Constitution of 1973, by a suitable amendment the parliament could have provided for trial of any offence by a Military Court in spite of the existence of the normal Courts.
13. The last argument of the learned Advocates was that the acts of the Chief Martial Law Administrator can be justified only within the scope of the law of necessity. This argument is also based on the judgment in the case of Begum Nusrat Bhutto. There can be no two opinions that it is necessary to punish a crime and the Military Courts that have been established under M. L. O. 4 perform no other functions except punishment of crimes. The argument was however in a narrower compass and it was urged before us that mere fact of necessity of punishment of a crime does not necessitate the establishment of Military Courts, more so, when ordinary Courts were in existence and functioning. The law of necessity is not codified but is deduced from the pronouncement of jurists. The latest pronouncement of the Supreme Court in the case of Mr. Z. A. Bhutto v. The State (PLD1978SC40) has adverted to concept of law of necessity, referred to in the case of Begum Nusrat Bhutto. His Lordship, the Chief Justice has laid down the manner in which action can be tested as being within the scope of the law of necessity. The test according to his Lordship lies not in the Court sitting in appeal from executive or Legislative authorities concerned, nor to substitute its own decision for that of the competent authority; because according to his Lordship the responsibility for the relevant action, its methodology and procedural details, must rest on that authority. It therefore follows that while judging whether action of the Chief Martial Law Administrator fell within the scope of the law of necessity no subjective tests have to be applied, for the subjective satisfaction is to be arrived at by the Chief Martial Law Administrator, who has taken upon himself the responsibility for the relevant action and also made a provision for methods and procedure for achieving the desired result.
14. In such circumstances this Court is not to sit in appeal from the action of the Chief Martial Law Administrator to find out whether all or any actions of his would be covered by unwritten law of necessity. Even otherwise we have known of several provisions in the various Constitutions of Pakistan when action was taken by an authority on being satisfied in regard to necessity of such action. It would indeed be perilous for the Courts to embark upon an enquiry which by its very nature will be subjective to find out if a necessity existed for the taking of any action. However it has been argued by the learned Advocate-General that the Military Courts were dealing with the cases expeditiously and the sole aim of the Chief Martial Law Administrator underlying establishment of Military Courts was to curb anti-social activities, smuggling, black-marketing, and such acts and offences which tend to destroy the object which underlie the imposition of Martial Law. By necessity one cannot understand the Supreme Court to mean such necessity as is contemplated in its extreme sense. It may be necessary to a thing at a particular time although if it is not done at that time no damage may occur or damage may be very slight. It only means the taking of such action which in normal course the Government thinks is necessary to take. In such circumstances even this argument does not carry much weight.
The upshot of the above discussion leads to the conclusion that Martial Law Order No. 4 is a valid piece of legislation.
The next question is with regard to the scope of powers of this Court in grant of relief in these petitions. These petitions no doubt are for relief in the nature of habeas corpus or certiorari. In each one of these petitions we are dealing with prosecution in a Military Court. Such Courts are not inferior Tribunal qua the High Court. The High Court does not exercise appellate or revisional jurisdiction of these cases. Facts would rarely be adverted to except in such cases where manifest failure of justice is apparent. But, if on the other hand it can be shown that there has bee non- compliance with or misapplication of any mandatory provision of Martial Law Orders, the High Court would readily correst the findings. The cases would be dealt with on individual merits.
The answer of the two questions having been given the individual cases shall now be placed before the Division Bench for disposal.
M. A. RASHID, J.-I agree.
MIR HAZAR KHAN KHOSO, J.-I concur.