This judgment will dispose of three miscellaneous applications bearing
(i) No. 211978 in Writ Petition No. 59411977 titled Sardar Ashiq Muhammad Khan Mazari etc. v. The Chairman, Federal Land Commission, Islamabad (ii) No. 1/1978 in Writ Petition No. 672/1977 titled Ghulam Hussain etc. v. Federal Land Commission, Islamabad etc. (iii) No. 3/ 1978 in Writ Petition No. 498 of 1977 titled Allah Wasaya etc. v. Federal Land Commission etc. The aforesaid writ petitions are still pending in which this Court issued interim order or orders directing maintenance of status quo or suspending operation of the relevant impugned orders. These interim orders could continue for a maximum period of six months as laid down in Article 2-A of the Laws (Continuance in Force) Order No. 1 of 1977, as amended up-to-date. As the aforesaid period of six months has since expired, or, was to expire, the petitioners moved the present miscellaneous applications for extension of the aforesaid interim orders or for extending their operation beyond the relevant period of six months till the decision of the main writ petitions. The question which has cropped up is as to whether this Court has the jurisdiction to issue such orders beyond a period of six months in view of the provisions of Article 2-A of the Laws (Continuance in Force) Order No. 1 of 1977, as amended up-to-date. Learned counsel for the petitioners have raised a number of points to which I will presently advert.
2. In the Constitution of 1973, Article 199 dealt with (what was commonly known as) the writ jurisdiction of High Courts. Clause 4 of that Article reads as follows;--- "Where----
(a) an application is made to a High Court for an order under-paragraph (a) or paragraph (b) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest or of impeding the assessm ent or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that interim order---
(i) would not have such effect as aforesaid, or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction." .
Later, on 25-I1-1975, by the Constitution (Fourth Amendment) Act LXXI of 1975, clause 4-A was inserted after clause 4 above reproduced. The newly added clause 4-A read as follows;---- "An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part 1 of the First Schedule or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier."
Section 14 of the Constitution (Fourth Amendment) Act which was headed as "certain orders shall cease to have effect after specified period" laid down that; "an interim order such as is referred to in clause (4-A1 of Article 199 of the Constitution made by a High Court before the commencement of this Act shall cease to have effect at the expiration of sixty days from such commencement unless the case is finally decided, or the interim order is withdrawn, by the Court earlier". A controversy arose whether a High Court could grant a fresh stay order after the expiry of sixty days or not. It was held in Chaudhary Textile Mills Ltd., Lahore v. Central Board of Revenue, Islamabad and another (PLD 1976 Lah. 1392) that as the intention of clause 4-A was that a stay order in no case should exceed a period of sixty days, therefore, no such order could be issued after the expiry of the period. This view was maintained by the Supreme Court of Pakistan in Federation of Pakistan etc. v. United Sugar Mills Ltd. Karachi (P L D1977 SC 397).
3. The matter rested at that but on 5-7-1977, there was proclaimed Martial Law in the Country when the Laws (Continuance in Force) Order I of 1977 was promulgated by the Chief Martial Law Administrator. This Order, as amended, reads as follows "1.-(1) This Order may be called the Laws (Continuance in Force) Order, 1977.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2.-(1) 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 (Martial Law Regulation or Martial Law Order made by the Chief Martial Law Administrator be governed as nearly as may be, in accordance with the Constitution.[ Subs. By CMLA Order No. 5 of 1977, Art. 2.] "Explanation.-In this Order, the terms `Constitution' shall be so construed as if Articles 179, 195 and 199 of the Constitution had not been amended by any of the Acts amending it).[ "Added by CMLA Order No. 6 of 1977, Art. 2:]
(2) Subject as aforesaid, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction Provided that the Supreme Court or a High Court shall not have the power to make any order of the nature mentioned in Article 199 of the Constitution against the Chief Martial Law Administrator or a Martial Law Administrator or any person exercising powers or jurisdiction under the authority of either).
[Subs. By CMLA Order No. 2 of 1977, Art. 2.]
(3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any. Court, in so far as they are for the enforcement of any of these Rights, shall stand suspended.
2-A. Notwithstanding anything contained in Article 2, an interim order made by a High Court. On an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in the Schedule or relates to, or is connected with, assessm ent or collection of public revenue shall cease to have effect on the expiration of a period of six months, following the day on which it is made unless the case is finally decided, or the interim order is withdrawn by the Court earlier.
[Ins. By CMLA Order No. 3 of 1977, Art. 2.] 3.-(1) The President shall act on, and in accordance with, the advice of the Chief Martial Law Administrator.
(2) The Governor of a Province shall act on, and in accordance with, the advice of the Martial Law Administrator appointed by the Chief Martial Law Administrator for the Province.
4.-(1) No Court, Tribunal or other authority shall call or permit to be called in question the proclamation of the fifth day of July 1977, or any Order or Ordinance made in pursuance thereof or any Martial Law Regulation or Martial Law Order.
(2) No judgment, decree, writ, order or process whatsoever shall be made or issued by a Court or Tribunal against the Chief Martial Law Administrator or any Martial Law Authority exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator.
5.-(1) Notwithstanding the abeyance of the provisions of the Constitution, but subject to any Order of the President or Martial Law Order made by the Chief Martial Law Administrator, all laws, other than the Constitution, and all Ordinances, Orders-in-Council, Orders made by the President, Rules, By-laws, Regulations, Notifications and other legal instruments in force in Pakistan or any part thereof, or having extra-territorial validity, shall, so far as may be and with such adaptations as the President may see fit to make, continue in force until altered, amended or repealed by competent authority.
(2) In clause (1), "in force", in relation to any law, means having effect as Law whether or not the law has been brought into operation.
6.-Subject to clause (2) of Article 3, the powers of a Governor shall be those which he would have had the Federal Government directed him to assume on its behalf all the functions of the Government of the Province under the provisions of Article 232 of the Constitution.[ Subs. By CMLA Order No. 5 of 1977, Art. 2.] 7.-(1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an Ordinance which was in force immediately before the commencement of this Order.
8.-All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution, and those' persons who immediately before such commencement were in office as Judge of the Supreme Court or a High Court, (or Auditor- General) shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any---- [ Subs. By CMLA Order No. 2 of 1977. Art. 2.] "Provided that the incumbent of any office who would have retired from office in the absence of the amendment of the Constitution shall cease to hold office forthwith. ["Subs. And added by CML A Order No. 6 of 1977, Art. 2.]
9. Any provision in any law, providing for the reference of a detention order to a Review Board shall be of no effect.[ Article 10 omitted by CMLA Order No. 4 of 1977, Art. 2.]
4. As has been indicated with necessary references, Laws (Continuance in Force) Order 1 of 1977 has undergone various amendments and changes. We are not concerned with all those amendments, and herein reference will be made only to those provisions which are relevant for our purpose. The first point argued by the learned counsel for the petitioners was that when a power to grant some main relief vests in a Court, then as a necessary corollary thereof a power to grant relevant ad interim relief till the decision of the main case also vests in that Court. The point so far raised appears to be correct. See Syed Sardar Shah Bokhari v. Chief Justice and Judges of the High Court of West Pakistan, Lahore (PLD1965SC479) ; Commissioner Khairpar Division, Khairpur and another v. A.I Sher Sarki (PLD 1971 SC 242), Zaffar Iqbal v. The Province of Sind and 2 others (PLD 1973 Kar. 383), Sind Employees Social Security Institution v. Adamjee Cotton Mills Limited (PLD 1975 SC 32) and Ch. Textile Mills Limited v. Central Board of Revenue, Islamabad (PLD 1976 Lah. 1392).
Making that as the base, learned counsel for the petitioners submitted that by Laws (Continuance in Force) (Fifth Amendment) Order, 1977 (C. M. L. A.'s Order 6 of 1977) gazetted on 22-9-1977, all earlier amendments of Article 199 of the Constitution were deleted. This is so indicated in the "Explanation" contained in Article 2 (1) of the Laws (Continuance in Force) Order 1 of 1977 (reproduced above). Learned counsel argued that the result of the aforesaid was that Article 199 of the Constitution got restored in its original form which contained no fetters in the matter of fixing any duration for the tenure of an ad interim order to be issued by a High Court vis-a-vis the Laws contained in the First Schedule of the Constitution etc. As such, it was argued that this Court now could issue an interim orders ad infinitum beyond a period of six months till the decision of the relevant main writ petition. The contention has no merit. No doubt the aforesaid "Explanation" does restore Article 199 to its original position as it stood prior to "any of the Acts amending it" ; and if the matter had rested at that the contention may have been acceptable, but Article 2-A which was inserted by the Laws (Continuance in Force) (Second Amendment) Order of 1977 (Chief Martial Law Administrator's Order No. 3 of 1977) in the Laws (Continuance in Force) Order 1 of 1977, retrospectively clearly lays down to excuse repetition that "notwithstanding anything 8 contained in Article 2 an interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person which has been made, taken or done or purports to have been made, taken or done under any law which is specified in the Schedule or relates to, or is connected with, assessment or collection of public revenues, shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn by the Court earlier". In the face of the aforesaid, while giving effect to the "Explanation" contained in Article 2 (1) of the Order, it is not justified as to give no legal effect to Article 2-A of the same Order.
In my opinion the aforesaid "Explanation" is subordinate to or overridden by Article 2-A which clearly states that it will operate 46 notwithstanding anything contained in Article 2. The scheme of the afore said provisions when placed in a juxtaposition seems to be that whereas all the earlier amendments in Article 199 were being done away with, but at the same time, a new provision in the form of Article 2-A was being introduced in the Laws (Continuance in Force) Order 1 of 1977 with the result that now duration of ad interim orders cannot exceed a maximum period of six months as provided therein.
5. When confronted with the above situation, Mr. Mumtaz Hussain, learned counsel for the petitioners in Writ Petition No. 594 of 1977 argued that the Chief Martial Administrator's Orders Nos. 3 and 5 of 1977 were ultra vires of his powers. His submission was that when the Laws (Continuance in Force) Order 1 of 1977 was initially promulgated on 5-7-1977 Article 2 (1) thereof laid down that the country was to be governed as far as possible in accordance with 1973 Constitution subject (only) to any Order of the President or any Regulation of the Chief Martial Law Administrator (and not an `Order' of the Chief Martial Law Administrator)(the argument is based onan assumed distinction between a "Regulation" and an "Order" of the Chief Martial Law Administrator)-on theground that whereas a Presidential Order and a Regulation of the Chief Martial Law Administrator could be of a supra-Constitutional nature but barring Order No. 1 of 1977, the same was not to be the status of further Orders of the Chief Martial Law Administrator which, according to him, in the text were to be merely of a kind of a subordinate legislation. He argued that if any change was to be made in the Constitution or if the same was to be subjected to any different or a new type of fetter in the, matter of fixing any duration for ad interim orders under Article 199, that should have been done by a Regulation of the Chief Martial Law Administrator or by an Order of the President by which means alone, according to him, the Constitution could be amended as distinct from any further "Order of the Chief Martial Law Administrator". He submitted that what ought to have been done was that first by a "Regulation" the Chief Martial Law Administrator should have amended Article 2 (1) of the Laws (Continuance in Force) Order 1 of 1977, providing that the amendments of the type under examination could be made by his further "Orders" (as well) and after that was done, only then he could have promulgated further "Orders" for making such amendments which might have been justified on the anvil of necessity-(a subject to be attended to later)-and without adopting that course direct amendments by means of various "Orders" by the Chief Martial Law Administrator was not justified. The contention has no merit. Martial Law was promulgated in the country by the Chief Martial La Administrator. It was he who issued the Laws (Continuance in Force Order 1 of 197 7- (which was of a supra-Constitutional nature) and by that Order he gave guide-charter by which the country was to be governed. He who issued the initial Order of that type, in my opinion, could obviously issue further "Orders" of same nature as well. The argument, therefore, that after issuing the initial Order 1 of 1977 of a supra-Constitutional nature, he could not issue further Orders or that be had become functus officio of his powers in that respect or for that purpose, is without substance. Similarly to argue that after issuing initial "Order' he could not add to, from amend, modify or alter that Order is not justified. If, therefore, by his Order No. 5 he added the relevant words in Article 2 (1) that the Constitution shall remain in force subject to his "Orders" (also) there was nothing wrong with that and rather it purported to clarify which probably otherwise was also the position and intent. Learned counsel wanted to argue that if once any "manner and form" for enacting a law has been laid down then that law should be promulgated in that and that form and manner alone. For this purpose he referred to Jurisprudence by R. W. Dias 4th Edition, Chapter 4 headed "The Problem of Power" page 117, sub-head "manner and form". He then referred to Willoughby on the Constitutional law of United States, 2nd Edition, Volume 1 page 11 on the subject of the "subsequent grant of legislative power". He also referred to The Province of East Pakistan etc. v. Md. Mehdi A.I Khan etc. (PLD 1959 SC (Pak.) 387), Mst. Zarina Gauhar v. The Province of Sind and 2 others (PLD 1972 SC 139) and Colony That Textile Mills Ltd. v. The Superintendent of Central Excise and Land Customs, Sargodha and 3 others (PLD 1971 Lah. 376), to point out the distinction between the Martial Law "Orders" and Martial Law "Regulations" and the manner of their amendments during the previous Martial Laws. In my opinion, the present case stands on a different footing because here the subsequent "Orders" were issued by the same person who had issued the earlier and the first Order and all that he had done is that he has made amendments in his first Order, which according to me, he was quite competent to do. The amending "Orders" have been issued as recited in the relevant preamble therein in pursuance of the Proclamation of the 5th day of July 1977 and in exercise of all powers enabling in that behalf. As will be discussed later, it has not been shown to me that the Chief Martial Law Administrator otherwise lacked any power to issue such Orders. In that view of the matter, the objection raised is of no substance, especially when it pertains merely to form and, as will be indicated later, not to any basic lack of jurisdiction as such.
Even otherwise, the argument, to speak with respect, suffers from an inherent fallacy, inasmuch as, it accepts the validity of the "Explanation" as added in Article 2 (1) of the Laws (Continuance in Force) Order 1 of 1977 in modified form, by the Chief Martial Law Administrator Order VI of 1977, but, however, disputes the issuance of the Chief Martial Law Administrator's Orders Nos. 3 and 5 of 1977.
The argument, it appears, purports to reprobate that which it approbates in the same breath and is hereby repelled. Before closing discussion of this subject, I would, however like to refer to Begun: Nusrat Bhutto v. Chief of Army Staff etc. (PLD 1977 SC 657) wherein the Supreme Court at page 716 has laid down; " . . . . . . (iii) the Chief Martial Law Administrator having validity assumed power by means of extra Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all such legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely ;
(a) all acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution including the power to amend it.
(b) that these acts or any of them may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require."
This shows that the Supreme Court has recognised the amendment of the Constitution (to confine myself to the, present case) by means of Martial Law Orders as well. The argument of the learned counsel which runs contrary to the above declaration of law by the Supreme Court cannot be accepted.
6. The next point argued by the learned counsel for the petitioners was that Article 2-A of the Laws (Continuance in Force) Order No. 1 of 1977 is not a valid law, as it cannot be supported on the anvil of "State necessity and welfare of the people" for which alone, according to the judgment of the Supreme Court in Begum Nusrat Bhutto v. The Chief of Army Staff etc. At page 703, line 14, the extra Constitutional step of Proclamation of Martial Law in the country and assumption of powers by the Chief Martial Law Administrator was upheld. He referred to pages 715 and 716 of the aforesaid report, a portion whereof has already been quoted in a different context, to show as to what was the scope within which the Chief Martial Law Administrator could act. The relevant passage on which reliance was placed by the learned counsel, reads as follows;--- "As a result, the true legal position which therefore, emerges is;
(i) That the 1973 Constitution still remains the Supreme Law of the land, subject to the condition that certain parts thereof have been held in abeyance one account of State necessity.
(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law, does not in any manner derogates from the position, as the Courts bad been originally established under the 1973 Constitution, and have continued in their functions in spite of the Proclamation of Martial Law.
(iii) That the Chief Martial Law Administrator having validly assumed powers by 'means of an extra Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely :
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it ;
(b) All acts which tend to advance or promote the good of the people ;
(c) All acts required to be done for the ordinary orderly running of State ; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of the Proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973 Constitution ;
(iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial 1 aw Regulations, as the occasion may require ; and
(v) That the superior Courts continue to have the power of judicial review to Judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance."
The argument of Mr. Mumtaz Hussain was that to fix a maximum period for the duration of ad interim orders with regard to cases pertaining to laws mentioned in the First Schedule of 1973 Constitution etc. Was neither in the "State necessity" nor for the "welfare of the people", as contemplated in the passage reproduced above. The precise submission was that due to unprecedental rush of cases in the High Courts and huge back-log, coupled with shortage of Judges, it is practically impossible for High Courts to dispose of all the writ petitions pertaining to the aforesaid laws within a period of six months, especially when High Courts occasionally had to spare Judges for special cases of other assignments as well in national interest under the relevant laws which require those assignments to be manned only by High Court Judges etc. If the intention of Article 2-A was that it really meant that the relevant cases should be decided by the High Courts within a period of six months, then since that intention in the situation abovementioned, was unrealistic, it was argued, that automatic vacation of stay orders/ad interim orders after expiry of that period was also unrealistic. To aim at unrealistic or impracticable expectations, it was argued, could not legally be called as a "State necessity" or for "public welfare". Any law which, therefore, so lays down, according to the learned counsel, could not be called for the good of the people or for ordinary orderly running of the State. The learned counsel then referred to page 719 of Begum Nusrat Bhutto's case, where the Supreme Court held that; "A perusal of the provisions of the Laws (Continuance in Force) Order also shows that they are primarily designed to give effect to the purposes of the Proclamation. As however this Order is an offspring of necessity, the Superior Courts continue to have the power of judicial review, notwithstanding anything to the contrary contained in this Order to test the validity of its provisions and any action taken thereunder, in the light of the principles regulating the application of the law and doctrine of necessity, as already set out earlier."
Reference was also made to pages 721 and 722 where the Supreme Court held as follows;-- "The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be summed up as follows :
(i) That the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the pre-existing Constitution or Legal Order, cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen's Pure Theory of Law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, be determined by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change and the extent to which the old Legal Order is sought to be preserved or suppressed ;
(ii) That in any case the theory of revolutionary legality can have no application or relevance to a situation where the breach of legal continuity is of a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution.
(iii) That examined in this light, the Proclamation of Martial Law on the 5th of July 1977, appears to be an extra Constitutional step necessitated by the complete breakdown and erosion of the constitutional and moral authority of the Government of Mr. Z. A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of March 1977. It was a situation for which the Constitution provided no solution, and the armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty and to separate the warring factions which had brought the country to the brink of disaster ;
(iv) That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity ;
(v) That it has also become clear from a review of the events resulting in the culmination of Martial Law and the declaration of intent made by the Chief Martial Law Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity ; and the President of Pakistan as well as the superior Courts continue to functions under this Constitution. In other words, this is not a case where the old Legal Order has been completely suppressed or destroyed, but, merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of the restoration of democratic institutions under the 1973 Constitution.
(vi) That, accordingly, the superior Courts continue to have the power of judicial review to Judge the validity of any action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance ; and
(vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force)
Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an emergency contemplated by clause (1) of Article 232 of the Constitution, and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind which could have been made under clause (2) of Article 232 of the Constitution."
Learned counsel submitted that despite the bar against issuance of stay orders/ad interim orders, beyond a period of six months, superior Courts continue to have the power of judicial review to Judge the validity of any act or action, of the Martial Law authorities if challenged in the light of the principles underlying the law of necessity as set out in the judgment of the Supreme Court. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. The plea simply repeats the law declared by the Supreme Court as reproduced above and should be read, if I can say so, not in isolation but alongwith a subsequent case of the same Court reported in Mr. Zulfiqar A.I Bhutto v. The State (PLD 1978 SC 40) (at page 59) where they clarified that; "It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with the examination whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case while spelling out the powers which may be exercised by the Chief Martial Law Administrator or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary prudent and reasonable citizen and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution."
Respectfully following the law so declared by the Supreme Court, I hold that since the law contained in Article 2-A is such which deals with a matter about which even the previous Legislature also had to make provisions in the form of clause (4-A) of Article 199, therefore, a legislation regarding that very matter by the Chief Martial Law Administrator which is rather more liberal and beneficial than the previous clause (4-A) of Article 199 is certainly within his domain and legislative sphere and its validity cannot be challenged on the type of arguments which are being advanced by the learned counsel, inasmuch as, this Court is not concerned with the methodology and procedural details of a law. However, I may observe that eve otherwise the import of Article 2-A is to provide a safeguard against unnecessary prolongation devices which are generally adopted by the unscrupulous suitors who get stay orders/ad interim orders in their favour and then exploit the same and avoid fixation of cases on one pretext or another. The benefit achieved is, for example, by one suitor as against detriment to public interest, public welfare, public exchequer or public policy, as the case may be, because, the subject-matters or laws regarding which a time limit in stay matters has been put are of somewhat extraordinary importance which need more expeditious implementation unhampered by usual techniques of the litigants concerned. It will be a pointer for the High Courts to try as much as they can, of course, within their limitations, to dispose of these matters as expeditiously as possible and at the same time will discourage and eliminate frivolous cases in which the sole aim some times may be to obtain a stay order and not a real success in the end. Moreover, the argument that such a case cannot be disposed of within a period of six months is not wholly correct, inasmuch as, this Court in appropriate cases has given early dates and also finally decided them in much shorter periods and even otherwise treated such types of cases on priority basis and at a stage brought the Land Reforms cases virtually to a very thin figure.
7. No other point was argued before me.
8. The upshot of the above discussion is that in Writ Petition No. 594/ 1977 stay order is granted upto 23-5-78 and in Writ Petition No. 498 of 1977 and Writ Petition No. 672 of 1977 the stay is granted up to 22-2-78 when after deducting the time already consumed it will respectively complete six months and will then automatically expire. I order accordingly. The aforesaid three Civil Miscellaneous applications are disposed of with the directions and observations made above. However, the parties shall bear their own costs.