P L D 1970 Peshawar 119 (PLP)

(a) Frontier Crimes Regulation (III of 1901) read with West Pakistan Criminal Law (Amendment) Act (VII of 1963), S. 34 and Constitution of Pakistan (1962), Arts. 6 & 98‑Repeal of Frontier Crimes Regulation by S. 34 of Act VII of 1963‑Effect‑Proceedings already instituted under Frontier Crimes Regulation Cap validly be completed in accordance with its provisions even after its repeat Trial under Frontier Crimes Regulation cannot be challenged in writ petition as violative of Fundamental Rights after abrogation of Constitution of 1962‑Provisional Constitution Order 1969, Art. 3(3). A person was convicted under the Frontier Crimes Regula tion, 1901. Before the sentence could be confirmed, the West Pakistan Criminal Law (Amendment) Act, 1963 came into force on 19‑4‑63 and the Frontier Crimes Regulation stood repealed by section 34 of that Act. The sentence was confirmed thereafter and at a time when the Fundamental Rights had come into existence. In writ petition before the High Court it was contend ed that the Frontier Crimes Regulation, 1901 was repealed by section 34 of the West Pakistan Criminal Law (Amendment) Act on 19th April 1963, when that Act came into force and therefore confirmation of the sentence being under a repealed Act was void ab initio. Further, it was urged, the sentences were con firmed after the Fundamental Rights incorporated in the Consti tution of Pakistan, 1962 had come into force and the provisions of the Frontier Crimes Regulation being inconsistent with the Fundamental Rights, the Regulation had become void and for that reason the confirmation of the sentence and consequently the entire proceedings under the Regulation were without lawful authority notwithstanding the provisions of clause (3) of Article 3 of the Provisional Constitution Order, 1969: Held, it is clearly provided in subsection (2) of section 34 of West Pakistan Criminal Law (Amendment) Act, 1963 "that the provisions of section 4 of the West Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regu lation, 1901". Section 4 applies to all laws of West Pakistan. It would have, therefore, ipso facto applied to the repeal of the Frontier Crimes Regulation by the Criminal Law Amendment Act. Since it is provided in section 4 of the General Clauses Act that it applies "unless a different intention appears" the Legisla ture, to obviate any doubt as to the applicability of the section, made its intention indubitably manifest by expressly providing "that the provisions of section 4 of the West Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901". By the fact that the Criminal Law Amendment Act came into force and the Frontier Crimes Regulation was repealed, the legal proceedings which were initiated under the Regulation were not to be affected and had, therefore, to be completed in accordance with the provisions of the Regula tion. Any other action would have been violative of the provi sions contained in section 4 of the General Clauses Act. It is thus well‑established a principle that the repeal of the statute does not affect any proceedings which was instituted under that and also the right of appeal which it may have provided. The principle will, however, not apply if it is otherwise provided by the repealing Act. The 1963 Act, which repealed the Frontier Crimes Regulation has, in fact, expressly provided in section 34 that the provisions of section 4 of the General Clauses Act would be applicable. In view of the established principle of law and particularly because of the express provision .in this behalf in the 1963 Act, the proceedings which were initiated under the Frontier Crimes Regulation were not affected and the same had to be completed in accordance therewith. By the abrogation of the Constitution of Pakistan, 1962 a new legal order came into exist ence, and therefore, it is with reference to that order that it is to be seen whether a person has any right or remedy. Paragraphs 2, 4, 5, 6, 7, 8, 9, 13, 14, 15 and 17 of the Fundamental Rights set out in Chapter I of Part II of the Constitution of the Islamic Repub lic of Pakistan 1962 were abrogated. The Fundamental Rights which were a part of the abrogated Constitution thus ceased to be a part of the national legal order. The High Court has, under the new order, no authority to issue any writ on the ground of violation of any of the Fundamental Rights. It was further provided in Article 3(3) of the Provisional Constitution Order, 1969, that "all proceedings pending in any Court, in so far as they are for the enforcement of these rights shall abate." By virtue of clauses (a) and (b) of Article 5, the Courts are debarred to call in question the Proclamation or any Order, and they have thus been rendered immune from a challenge. The contention that a law can still be declared ultra vires if it is violative of basic human rights and that such writs have not abated, is without any substance. On the plain reading of Article 3(3), the relief claimed as it is on the sole ground that the petitioners' trial under the Frontier Crimes Regulation was violative of the Fundamental Rights, cannot be granted now, and such petitions have abated. Sajjad Hussain v. Muhammad Mahboob Abbasi P L D 1964 B J 4; Muzafar Hussain v. State P L D 1962 Lah. 744; Saled Ali v. State P L D 1963 Kar. 10; Nasir Mahmud v. State P L D 1961 Lah. 285; The State v. Dosso P L D 1958 S C (Pak.) 533; Province of East Pakistan v. Muhammad Mehdi Ali Khan P L D 1959 S C (Pak.) 387; Tanbir Ahmad Siddiky v. Province of East Pakistan P L D 1968 S C 185; Muhammad Hussain v. The State P L D 1968 Lah. 1; Abdul Rauf v N.W. F. P. Government P L D 1958 Pesh. 73 and Toti Khan v. District Magistrate, Sib! and Ziarat P L D 1957 Quetta 1 ref. (b) Interpretation of statutes‑Repeal‑Does not affect any investigation or legal proceedings already instituted unless different intention expressly mentioned in repealing statute. Muhammad Irtiza v. The State P L D 1959 Kar. 94 and Saeed Ahmad v. State P L D 1964 S C 266 ref. (c) Interpretation of statutes‑Provisions of enactment in con flict with Constitution‑Court may ignore or disregard statute but decision of Court in such case does not repeal or annul statute Decision affects parties only and does not operate as judgment against statute. The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases but it does not strike the statute from the statute book; it does not repeal ....the statute. The parties to that suit are concluded by the judgment but no one else is bound. A new litigant may bring a new suit based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reason, and basis of the fundamental rule that a Court will never pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it. Sheppard v. Wheeling 30 W Va. 479 ref. SHER BAHADUR KHAN, J.‑By this single judgment, we shall? be disposing of the following 26 writ petitions in which the points involved are common: 0--‑ (1) W. P. No. 395 of 1965, Wali Muhammad v. Government of West Pakistan etc. (2) W. P. No. 40) of 1965, Fazal Rahman etc. v. Government of West Pakistan etc. (3) W. P. No. 406 of 1965, Shakir Muhammad v. State etc. (4) W. P. No. 448 of 1965, Said Ahmad v. State etc. (5) W. P. No. 453 of 1965, Khan Khalib v. State etc. (6) W. P. No. 461 of 1965, Alam Sher v. State etc. (7) W. P. No. 464 of 1965, Muhammad Hanif etc. v. State etc. (8) W. P. No. 479 of 1965, Misri Khan v. State etc. (9) W. P. No. 484 of 1965, Abdul Qayum v. State etc. (l0) W. P. No. 491 6f 1965, Lal Din v. State etc. (11) W. P. No. 505 of 1964, Salah‑ud‑Din etc. v. Commissioner, Peshawar etc. (12) W. P. No. 509 of 1965, Khushdil v. State etc. (13) W. P. No. 511 of 1955, Mohabat Khan etc. v. State etc. (14) W. P. No. 513 of 1965, Hastam Khan v. State etc. (15) W. P. No. 515 of 1965, Sarfaraz etc. v. State etc. (16) W. P. No. 517 of 1965, Amaldar Khan v. Government of West Pakistan etc. (17) W. P. No. 524 of 1965, Hakim Baz v. Government of West. Pakistan etc. (18) W. P. No. 528 of 1965, Ghulam Khan etc. v. State etc. (19) W. P. No. 533 of 1965, Saz Wali v. State etc. (20) W. P. No. 535 of 1965, Jan Muhammad etc. v. State etc. (21) W. P. No. 67 of 1967, Ghulam Sarwar v. State etc. (22) W. P. No. 75 of 1965, Abdul Halim v. Commissioner, F. C. R. etc. (23) W. P. No. 521 of 1965, Naubat Khan etc. v. State etc. (24) W. P. No. 573 of 1965, Haya Gul v. State etc. (25) W. P. No. 549 of 1965, Muhammad Karim etc. Com missioner, Peshawar etc. (26) W. P. No. 607 of 1965, Rahimullah etc. v. State etc.

2. The petitioners were tried under the 7rontier Crimes Regulation, 1901. Before the sentences were confirmed, the West Pakistan Criminal Law (Amendment) Act (VII of 1963) came into force on the 19th April 1963. The Frontier Crimes Regulation stood repealed by virtue of section 34 of she Act. The order of confirmation under the Frontier Crimes Regulation, however, was passed after the repeal and at a time when the Fundamental Rights set out in Chapter I of Part It of the Constitution of the Islamic Republic of Pakistan, 1962, had come into existence by virtue of the Constitution (First Amend ment) Act, 1963 (1 of 1964), which became operative from the 16th January 1964. The petitioners have challenged their conviction through these petitions under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962.

3. On behalf of the petitioners it is contended that the Frontier Crimes Regulation, 1901 was repealed by section 34 of the West Pakistan Criminal Law (Amendment) Act, on the 19th April 1963, when the Act came into force and, therefore, the con firmation of the sentence of the petitioners being under a repealed Act was void ab initio. We find no force in this contention.

4. It is clearly provided in subsection (2) of section 34 of 1963 Act "that the provisions of section 4 of the West Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901". Section 4 of the West Pakistan General Clauses Act provides: "Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not (a) . . . . (b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) . . . . . (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as afore said; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed". Section 4 applies to all laws of West Pakistan. It would have, therefore, ipso facto applied to the repeal of the Frontier Crimes Regulation by the Criminal Law Amendment Act. Since it is provided in section 4 of the General Clauses Act that it applies "unless a different intention appears" the Legislature, to obviate any doubt as to the appli cability of the section, made its intention indubitably manifest by expressly providing "that the provisions of section 4 of the West Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901." By the fact that the Criminal Law Amendment Act came into force and the Frontier Crimes Regulation was repealed, the legal proceedings which were initiated under the Regulation were not to be affected and had, therefore, to be completed in accordance with the pro visions of the Regulation. Any other action would have been violative of the provisions contained in section 4 of the General Clauses Act. The precise question was considered in Sajjad Hussain v. Muhammad Mahboob Abbasi (P L D 1964 B J 4) and it was held: "The repeal of Frontier Crimes Regulation brought into operation section 4 of the West Pakistan General Clauses Act, and sub section (2) of section 23 of Criminal Law Amendment Act, 1963 makes it doubly clear that the provisions of section 4 of West Pakistan General Clauses Act shall apply to the repeal in view of clause (e) of section 4 (1), the repeal shall not affect any legal proceedings in respect of any liability and such legal proceedings may be continued and punishment may be imposed as if the repealing Act had not been passed. There is, therefore, no manner of doubt that the effect of the repeal or Frontier Crimes Regulation was intended to enable cases referred to Jirgas to be continued and concluded as if the F. C. R. had not been repealed. It is, however, a well‑established proposition that a repeal of the statute does not affect the investigation or the legal proceedings under the Act and that they have to be com‑ C pleted under the repealed Act under which they were commenced, notwithstanding the repeal of the same. In Muzafar Hussain v. State (P L D 1962 Lah. 744), it was held that sanction accorded under the Pakistan Criminal Law (Amendment) Act (XIX of 1948), which was repealed by the Pakistan Criminal Law (Amendment) Act (XL of 1958) was valid for prosecution of offences under the new Act. It was observed in Saeed Ali v. State (P L D 1963 Kar. 10), that a proceedings initiated against a person under the Sind Control of Goondas Act, 1958, had to be completed under that Act notwithstanding its repeal by the West Pakistan Control of Goondas Ordinance, 1959, and, therefore, an order declaring a person as Goonda under the repealing Ordinance of 1959 was invalid. In Muhammad Irtiza v. The State (P L D 1959 Kar. 94), a Division Bench held : "There are provisions in section 6 of the General Clauses Act, 1897, by which effect of repeals are to be determined. According to that section, when an Act repeals any enactment, then, unless a different intention appears, the repeal does not affect any investigation or legal proceedings already instituted". Precisely the same view was expressed by a Full Bench in Nasir Mahmud v. State (P L D 1961 Lah. 285). In that case the West Pakistan Government made an order on the 24th March 1960, acting under section 4 (1) (i) of the Press Emergency Powers Act (XXIII of 1931) that a sum of Rs. 500.C0 which had been deposited on the 25th January 1956, by Syed Nasir Mahmud, keeper of the Amalgamated Press, Sialkot, shall be confiscated. Shortly after, another order which was to the effect that if he wanted to continue working the Amalgamated Press he should put in security in the sum of Rs. 3,000.00 was served on him. Aggrieved by the orders of the Provincial Government, Syed Nasir Mahmud presented a petition under section 23 read with section 25 of Act XXIII of 1931, with a view to having the orders of the Provincial Government vacated. Before, however, the petition could be heard by the High Court, Act XXIII of 1931, was repealed by the Press Publications Ordinance, 1960 (No. XV of 1960), which was promulgated by the President of Pakistan on the 26th of April 1960. Shabir Ahmad, J., who was the author of the Full Bench judgment, while dealing with the argument whether it was competent for the High Court to have heard and decided the petition filed under Act XXIII of 1931, after the repeat of the same, observed: "Not withstanding the repeal of the Act, the law applicable to this case would be the provisions of the Act and not those of the newly promulgated Ordinance". In Saeed Ahmad v. State (1) it was observed by Kaikaus, J. "So far as the procedural pro visions are concerned the ordinary rule is that Courts continue to have the jurisdiction which they had at the time when a proceed ing was instituted even though that jurisdiction is subsequently taken away, but an interpretation of the new Act may lead to a different result. Not long ago we held that all appeals which were competent under the old Constitution could be filed if the judgment under appeal had been delivered wh n the previous Constitution was still in force. Even if the appeal was in such a case filed after the coming into force of the new Constitution that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass no order of that kind even in a pending proceeding, but as I have said this will depend upon the inter pretation of the new statute". It is thus well‑established a principle that the repeal of the statute does not affect any proceedings which was instituted under that and also the right of appeal which it may have provided. The principle will, however, D not apply if it is otherwise provided by the repealing Act. The 1963 Act which repealed the Frontier Crimes Regulation has, in fact, expressly provided in section 34 that the provisions of section 4 of the General Clauses Act would be applicable. In view of the establish‑.d principle of law and particularly because of the express provision in this behalf in the 1963 Act, the proceedings which were initiated under the Frontier Crimes] Regulation were not affected and the same had to be completed in accordance therewith.

5. It was next contended that the sentence of the petitioner was confirmed after the Fundamental Rights had come into force, and the provisions of the Frontier Crimes Regulation being inconsistent with the Fundamental Rights, it had become void and for that reason the confirmation of the sentence and consequently the entire proceedings under the Regulation were without lawful authority.

6. The Constitution of the Islamic Republic of Pakistan, 1962, was abrogated by the Proclamation of Martial Law, on the 25th of March 1969, and in the exercise of the powers vested in him by the Proclamation and all other powers enabling him in this behalf, the President promulgated a Provisional Constitution Order (hereinafter to be called the Order) on the 4th April 1969, in clause ((1)P L D 1964 S C 266) of Article 3 whereof it was provided "Notwithstand ing the abrogation of the Constitution of the Islamic Republic of Pakistan brought into force on the 8th day of June 1962, herein after referred to as the said Constitution, by the Proclamation and subject to any Regulation or Order made, from time to time, by the Chief Martial Law Administrator, the State of Pakistan shall, except as otherwise provided in this Order, be governed as nearly as may be in accordance with the said Constitution". Paragraphs 2, 4, 5, 6, 7, 8, 9, 13, 14, 15 and 17 of the Funda mental Rights set out in Chapter I of Part II of the 1962 Constitution were abrogated by clause (3) of the aforementioned Article and it was further provided that "all proceedings pending in any Court, in so far as they are for the enforcement of those Rights shall abate". In clauses (a) and (b) of Article 5 it was provided: "No Court, tribunal or other authority shall call or permit to be called in question (a) the Proclamation; (b) any Order made in pursuance of the Proclamation or any Martial Law Regulation or Martial Law Order".

7. It was contended on behalf of the petitioners that there are certain rights which are inherent in the citizens of a State and they cannot be deprived of the same by any process; that the only significance of a Fundamental Rights is that it is more or less permanent which cannot be annulled in any circumstance, and that in the context the petitioners can still challenge the vires of the Regulation as being inconsistent with the Fundamental Rights notwithstanding the provisions contained in clause (3) of Article 3 of the Provisional Constitution Order, 1969. We face no difficulty in dealing with the question in view of the decisions of the Supreme Court precisely on the same point which came up before their Lordships during the regime of the 1958‑Martial Law which was imposed in the entire country on the 7th October 1958. The President and the Chief Martial Law Administrator had then, on the 10th October 1958, by virtue of the powers vesting in him by the Proclamation of Martial Law, promulgated the Laws (Continuance in Force) Order I of 1958, which had almost the same provisions as are contained in the Provisional Constitution Order, 1969. It was provided in Article 11 of the Order: "Notwithstanding the abrogation of the Constitution of the 23rd March 1956" hereinafter referred to as the late Constitution by the Proclamation and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law the Republic to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution" The order, and particularly the provision con tained in its Article 11, were considered and interpreted in The State v. Dosso (P L D 1958 S C (Pak.) 533) , Province of East Pakistan v. Muhammad Mehdi Ali Khan (P L D 1959 S C (Pak.) 387) and Tanbir Ahmad Siddiky v. Province of East Pakistan (P L D 1968 S C 185). It was unanimously held (the quotation to follow is of Cornelius, J., in The State v. Dosso). "The abroga tion of the Constitution of 1956, represents an irrevocable act of the Supreme Authority by which it was performed" and that it brought about a new Order, and thus a law to be valid and operative must derive "its validity afresh from the Order, and its vires must be tested by reference to that Order only". On these premises, it was further unanimously held "that the Funda mental Rights had not survived the successful Martial Law Revolution" (this quotation is from the judgment of Rahman, J., yin Tanbir Ahmad Siddiky v. Province of East Pakistan). We are bound by the decisions of the Supreme Court. In Tanbir Ahmad Siddiky's case, while dealing with an argument that the decision of the Supreme Court given during the period of Martial Law was not binding on the High Court, it was held: "The contention was rightly repelled by the High Court as untenable, for there has been a continuity in the structure, functioning and recognition of this Court by all authorities, both during the pre‑Martial Law and post‑Martial Law periods, up to date, and the law declared by this Court has continued to be binding on all Courts in this country. The decision of this Court in the case cited amounted to law declared, and was not a mere adjudication confined to the facts of that case". We may, in order to have a clear concept of the abrogation of the Constitution, the consequent Martial Law, and of the legal order by which we are governed, refer to the observations of the Supreme Court. In dealing with ‑the Proclamation of the President, dated the 7th October 1958, and Article 11 of the Laws (Continuance in Force) Order, 1958, Muhammad Munir, C. J. observed in The State v. Dosso: "It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change .not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order . . . . .If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revolutionary Government and the new Constitution are, according to International Law, the legitimate Government and the valid Constitution of the State. Thus a victorious revolution or a successful coup that is an internationally recognized legal method of changing Constitution. After a change of the character I have mentioned has taken place, the national legal order must for its validity depend upon the new law‑creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution". Reliance was placed on the observations of Hans Kelsen, the same being: "If laws which are introduced under the old Constitution continue to be valid under the new Constitution, this is possible only because validity has expressly or tacitly been vested in them by the new Constitution . . . . .The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws". In the same context it was observed by Shahab‑ud‑Din, J. at page 546 of the Report: "According to the Proclamation which is not and cannot be called or permitted to be called in question as well as in actual effect the late Constitution stands abrogated, and the new order under which the Courts are exercising their respective jurisdic tions at present takes its place with regards to the matters to which it relates. The adoption in the new order of any of the provisions of the late Constitution does not affect; the abroga tion, as those provisions, as pointed out by Hans Kelsen in his book General Theory of Law and Sate (translated by Anders Wedberg, 20th Century Legal Philosophy series) relied on by the learned Attorney‑General, receive validity only from the new Order". The view was reiterated in the Province of East Pakistan v. Muhammad Mehdi Ali Khan. Again, in Tanbir Ahmed Siddilc11 v. Province of East Pakistan, Rahman, J., who delivered the leading judgment, observed at page 201 of the Report "that with the disappearance of the late Constitution and replacement by a new legal order which excluded that Constitution, all proceedings in cases in which the validity of a law had been called in question on the basis of Fundamental Rights, embodied in the late Constitution had abated, under Clause 7 of Article 2 of the Order. It was laid down clearly in that case" (reference is to The State v. Dosso) "that the Fundamental Rights had not survived the successful Martial Law Revolution. On that point there was no difference of opinion among the Judges of this Court. The minority view" (reference here is to the view of Cornelius, J.) "in that case only expressed a doubt as to whether the con cluding words of Clause 7 of Article 2 of the Order, had the effect of bringing to an abrupt end, the proceedings in the petitions before the High Court, commenced by the affected parties at a time when the late Constitution was in force". We may, therefore, with advantage reproduce the observations of Cornelius, J. in The State v. Dosso, the same being: "the abroga tion of the Constitution of 1956 represents an irrevocable act of the Supreme authority by which it was performed . . . . By the Constitution of 1956, the highest authority of an overriding character, governing all laws and legislation in the country, had been given to the principles which were set out and enumerated as Fundamental Rights in Part II thereof. No law could be made in contravention of those rights on pain of invalidity. That prohibition is obviously not intended to continue, for the Order gives overriding power now to the President and the Chief Administrator of Martial Law to make orders and Regulations contrary to anything appearing from the words used in the Consti tution of 1956. Therefore, there is no room for the argument that the Frontier Crimes Regulation must still, in the new order of things, conform to the requirements of Part II of the Constitution of 1956. It derives its validity afresh from the Order, and its, vires must be tested by reference to that Order only. On that basis, it is clear that the Regulation may be applied, as from the 7th October 1958, according to its terms". 1n the Province of East Pakistan v. Muhammad Mehdi Ali Khan, Cornelius, J. reiterated this view while observing that "the directory provisions of the late Constitution referred to in Article 2 (1) have, subject as expressed in the order, been subsumed into the Martial Law. The force which they possess is not relatable any longer to their enactment in the Constitution in which they appear, but exists. only because of and by reason of the Martial Law, and only to the extent that the Martial Law by expression does not recall or avoid them". In Tanbir Ahmad Siddiky v. Province of East Pakistan, Cornelius, C. J., reaffirmed the position while observing at page 211 of the Report : "The period of Martial Law was governed by its own source of law, namely, the Revolution of the 7th October 1958, and the actions that were done and brought to completion in that period, in compliance with laws derived from the said source are all covered by the Martial Law of which the decision in the case of Dosso, as confirmed in the case of Mehdi Ali Khan, was an essential part".

8. By the abrogation of the Constitution, a new legal order came into existence and, therefore, it is with reference to that order that it is to be seen whether a person has any right or remedy. Paragraphs 2, 4, 5, 6, 7, 8, 9, 13, 14, 15 and 17 of the Fundamental Rights set out in Chapter I of Part II of the Con stitution of the Islamic Republic of Pakistan, 1962 were abrogated. The Fundamental Rights which were a part of the abrogated Constitution thus ceased to be a part of the national legal order. The High Court has, under the new order, no authority to issue any writ on the ground of violation of any of the Fundamental Rights. It was further provided in Article 3(3) of the Provisional Constitution Order, 1969, that "all proceedings pending in any Court, in so far as they are for the enforcement of these Rights shall abate". By virtue of clauses (a) and (b) of Article 5, the Courts are debarred to call in question the Proclamation or any Order, and they have thus been rendered immune from a challenge. The contention that a law can still be declared ultra vires if it is violative of basic human rights and that such writs have not abated, is without any substance. On the plain reading of Article 3 (3), the relief claimed as it is on the sole ground that the petitioners' trial under the Frontier Crimes Regulation was violative of the Fundamental Rights, cannot be granted now, and the petitions have abated. The learned counsel, however, contended that Fundamental Right No. 1 which provides that no person shall be deprived of his life and liberty except by law, has not been abrogated, and that being so it is competent for the petitioners to contend that their conviction was under a void law and be, without having recourse to any other Funda mental Right, is entitled to be set at liberty. The precise con tention raised in this behalf was that on the date the order of petitioners conviction was confirmed by the learned Commissioner under the Frontier Crimes Regulation, the provision under which action was taken was non‑existent by virtue of the Fundamental Rights and the confirmation was, therefore, no confirmation in the eye of law, and that in the absence of a confirmation there was no valid conviction which could result into their sentence. It was contended that their conviction on the basis of confirma tion was void ab initio, and since it was of a date prior to the abrogation of the Constitution, their detention in jail to serve the sentence on the basis of the conviction, had all along been with out the backing of any law. Reliance was placed on Muhammad Hussain v. The State (P L D 1968 Lah. 1) to contend that a detention or a sentence if it was not in accordance with law, can, notwith standing the suspension or the abrogation of the Fundamental Rights, also be declared as without lawful authority on the basis of Fundamental Right No. 1.

9. The District Magistrate, acting under section 11 of the Frontier Crimes Regulation, referred the cases of murders against the petitioners to the Council‑of‑Elders. They found them guilty whereupon they were convicted. The petitioners filed writ petitions on the ground that the provisions of the Frontier Crimes Regulation enabling the District Magistrate to refer a criminal case to the Council‑of‑Elders were void by operation of Article 6 of the Constitution of 1962, inasmuch as it was violative of paragraph 15 of the Fundamental Rights which provided that "all citizens are equal before law and are entitled to equal protection of law." Reliance was placed on a Full Bench judgment in Abdul Rauf v. N.W. F. P. Government (P L D 1958 Pesh. 73) where it was held: "As section 11 confers an unguided, uncontrolled and arbitrary power on the Deputy Commissioner and completely excludes a discretion of a judicial nature, and also because it lays down a procedure which is different from the procedure applicable to the people similarly situated, it is hit by Article 5 of the Constitution, and is completely void under Article 4". Same view was taken in Toti Khan v. District Magistrate, Sibi and Ziarat (P L D1957 Quetta 1). It was contended that since by these judgments section 11 of the Frontier Crimes Regulation was declared void and, therefore, ceased to be a law with the result that the petitions under Article 98 filed by the petitioners were not to be considered as based on a Fundamental Rights, but were on the ground that they had been deprived of their liberty by an order of conviction and sentence made without any authority of law. The whole argument is dependent on the decisions which had already been given holding section 11 to be ultra vires the Constitution. Thus, if the decision on the interpretation of section 11 itself had been reversed or be capable of reversal, the contention raised on behalf of the peti tioners would fall to the ground. In The State v. Dosso, Cornelius, J. held at page 566. "that section 11 of the Regulation is not a discriminatory provision inasmuch as it treats of actual conditions existing in the areas in question, where the two separate jurisdictions, namely, the modern and the traditional, are both necessary, and the exercise of a choice as to which juris diction should apply to a particular case is entrusted to highly responsible officers, who are required by the statute to act upon a principle of expediency, having regard to the general adminis tration of the area including the dispensation of justice in the particular case." He thus held section 11 to be intra vires the Constitution and the Fundamental Rights. It was submitted that the decision in The State v. Dosso was based not on the ground that section 1 L was intra vires the Constitution, but was based on a finding that by the abrogation of the 1956‑Constitution, the appeal against a decision of the High Court holding section 11 of the Frontier Crimes Regulation as ultra vires had abated. The fact, however, remains that the question as to the vires of section 11 of the Regulation has not been finally settled. Even if there had been an adjudication on the question by the Supreme Court that section 11 was ultra vires the Constitution, then too it will not be rendered void ab initio. In Sheppard v. Wheeling (30 W. Va. 479) cited with approval in Willoughby Volume I, page 10, 2nd Edition, it was observed: "(The Court) does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases but it does not strike the statute from the statute book; it does not repeal . . . . the statute. The parties to that suit are concluded by the judgment but no one else is bound. A new litigant may bring a new suit based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reason and basis of the fundamental rule that a Court will never pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it". These observations were approvingly cited in Province of East Pakistan v. Muhammad Mehdi Ali Khan, and it was observed "that the Court does not veto, annul or revise legislation and that its sole function is to pronounce for or against the litigated right or liability by determination of the law applicable to the facts though its decision may have repercussions on a statute or a part of it in respect of future cases"; that the "resolution of such conflict is necessary not for general purposes but for the decision of a particular right or liability"; and that the "validity or voidance has to be judged when a case calling for their operation arises and if the fundamental rights do not exist when a law has to be applied to a case it must be applied as it was enacted and amended front time to time, without subjecting it to the disability of inoperativeness by a Constitutional command which has ceased to govern'". The Supreme Court had, before the abrogation of the Constitution, held that the East Bengal State Acquisition and Tenancy Act, 1950 "to the extent it permitted acquisition of rent‑receiving interests in wakf properties" was void, and remand ed the case to the High Court for deciding in which cases the suitors in that case had rent‑receiving interests in wakf properties. With the abrogation of the Constitution, the petitions were dis missed, based as they were on the Fundamental Rights. In appeal, it was contended that by the declaration of the Supreme Court, the 1950‑Act stood annulled, and that thereafter the case was not for the enforcement of the Fundamental Rights, but under the ordinary law. The contention was repelled by observing that on the suspension of the Fundamental Rights, "the law becomes immediately operative without its being re‑enacted" and that the "applications for writs were founded and are still founded on Article 18 and not on the ordinary law as though by the previous decision of this Court that law had been clipped of its offending provisions. The finding in our previous judgments that the law was void because it conflicted with Article 18 could have operation only as long as the reason of its voidance existed. That reason having disappeared, the law has full operation and it is conceded that if that be so the present applications would be incompetent under it. Their foundation is a Fundamental Right that no longer subsists and is not available for an attack on the con stitutionality of the law under which the notifications were issued." In the same context, Cornelius, J. observed " . .the ascertain ment of the inconsistency and the declaration that in consequence of such inconsistency certain provisions in the Act of 1950 were void was dependent wholly upon the existence of the firm rule, laid down as a permanent norm, in Articles 4 and 18 of the late Constitution, and the moment that norm lost its compulsive aspect, the declaration of law by the Supreme Court, affecting the relevant provisions in the Act of 1950 was itself rendered of no effect, with the consequence that the infirmity which had been laid over those provisions by reason of the judgment was immediately lifted, and the executive became once again enabled to aet in accordance with those provisions free of the peril of interference by the Court". A similar contention was raised in Government of West Pakistan v. Ghulam Mohiy‑ud‑Din (P L D 1960 Pesh. 163) and it was observed by Kayani, C. J. "We have no doubt, however, that if the Provincial Legislature was not competent to enact a law or a part of a law, it was invalid from. its very inception and it would not be regarded as a law in force within the meaning of Article 4 of the Laws (Continuance in Force) Order. In the case before the Supreme Court, the question was whether a law which has been described to be void by Article 4 of the late Constitution by reason of its conflict with a Fundamental Right, could be said to be in force on the date of the abrogation of the Constitution, and it was held to be still in force because it was void only in the sense that in the decision of a particular case which brought it into conflict with a Fundamental Right, it had to be ignored or disregarded. Tile moment the Funda mental Right was taken away by an amendment of the Constitution, the law again became operative without its being re‑enacted. In Tanbir Ahmad Siddiky v. Province of East Pakistan it was observed: " The declaration made by this Court in Jibendra Kishore's case (P L D 1957 S C (Pak.) 9) as was clarified by the learned Chief Justice in Muhammad Mehdi Ali Khan Panni's case, remained effective so long as the late Constitution was in operation, and it ceased to have efficacy after its abrogation". The contention raised on behalf of the petitioners that since the law was declared void in some of the judgments of the High Court and the petitions were not based on a Fundamental Right is untenable. In order that they may succeed, they have to establish in their cases that the provisions of section I1 were void and this they are unable to do unless they invoke the Fundamental Rights to their aid.

10. The provisions of the Frontier Crimes Regulation were applicable to the pending proceedings notwithstanding its repeal when the Fundamental Rights were added. It was contended that being in conflict with paragraph 15 of the Fundamental Rights, it became void by reason of Article 6 and thus was not law when the orders of conviction were confirmed. Article 6 declared that any existing law "in so far as it is inconsistent with the rights conferred by this Chapter, shall to the extent of such inconsis tency, be void". The law is void only to the extent of the inconsistency and not the whole of it. The ascertainment of the inconsistency is the function of the Court as observed by Cornelius, J., in Muhammad Mehdi Ali Khan's case and it was further held: "it is, of course, only when the question arises for decision that the degree of inconsistency can be ascertained with the necessary effect, i.e. so as to deprive the repugnant provision of operation as law". The Regulation was in force and operative before the Fundamental Rights were brought on the statute book, and if any of its provisions had been inconsistent with any of these Rights, to that extent it would have become inoperative although it would have remained in force. It was observed in the context by Cornelius, J. ". . . . it may be safely held that where a law having both force and operation is robbed of its operation by virtue of a judicial finding that its provisions are inconsistent with those in a major law, such law is as much a law in force, as another law duly enacted which awaits a further act of a Legislature or competent authority for bringing it into operation". His Lordship further held that where the provisions of a statute are deprived of operation by being ascertained to be repugnant to other provisions in a major statute, and where subsequently the major statute is itself repealed, whereupon the impugned provisions of the other statute are restored to full force. "In Tanbir Ahmad Siddiky v. Province of East Pakistan it was held that a law which is rendered void being inconsistent with the Fundamental Rights would be revived in its full force after the abrogation of the Constitution. It was further held that by the fact that the provisions of an existing law were inconsistent with any of the Fundamental Rights, they were not pro tanto cut down or clipped, and that the "legal provisions of the Act were only under a temporary eclipse so long as the late Constitution was in force, and as soon as that dominant law disappeared from the field, the Act became operative according to its tenor".

11. Thus, after the Proclamation and the Provisional Constitution Order, 1969, no law can be declared void on the ground that it was inconsistent or repugnant to a Fundamental Right. In this view of the matter, the vires or otherwise of the Frontier Crimes Regulation, 1901 cannot be judged with reference to any of the Fundamental Rights. The law remains in force and operative. The petitioners were convicted under the said law and are undergoing the terms of their imprisonment. The dictum laid down in Muhammad Hussain v. The State would have been applicable if it could be possible for us to hold that the Frontier Crimes Regulation was not a law or that the relevant provision contained in section 11 of the Regulation under which action was taken was not a valid piece of legislation. In the absence of such a finding, it cannot be said that the petitioners have been "deprived of life or liberty save in accordance with law". In Khair Bakhsh v. State (P L D 1968 Quetta 62) it was observed by the Division Bench; "Paragraph I of the Fundamental Rights provides that no person shall be deprived of life or liberty save in accordance with law'. The detenu was arrested under section 16 of the impugned Ordinance and he is to be tried under the said Ordinance also. The Ordinance was made by the Governor of West Pakistan in exercise of the powers conferred on him by clause (1) of Article 7 9 of the Constitution. Since it is a law made by a competent Legislature, Paragraph 1 of the Fundamental Rights is not violated the least. The law is presumed to be valid unless declared otherwise either on the ground that it was beyond the competence of the Legislature making it, or that the Legislature bad in enacting it contravened the Fundamental Rights. So long as such a declaration is not made, the Ordinance being a positive law will be deemed to be a valid piece of Legislation. The challenge was made to the vires of the Regulation on the ground that being violative of Paragraph 15 of the Fundamental Rights was void under Article 6 of the Constitution. The contention cannot be given effect to after the abrogation of the Constitution. The law remained in force and operative and the action having been taken under that law is not violative of Fundamental Right No. 1.

12. The petitions, based as these are on the Fundamental Rights, abate forthwith under clause (3) of Article 3 of the Pro visional Constitution Order, 1969. We make no order as to, costs. K. B. A. Petitions, held, abated.