1991 PLP (C (PLC(CS))

4. The appeal is directed against the Federation of Pakistan through the Secretary, Establishment Division. The department has taken preliminary objection that the appeal stood abated under Article 13-A of the Provisional Constitution Order which stands protected by Article 270-A of the Constitution and the appeal, is therefore, liable to be dismissed.

5. At the hearing, the learned counsel for the appellant has concentrated his arguments on the question of abatement of appeal. He has contended that the impugned order was void as it was not passed in accordance with the provisions of Martial Law Regulation No. 58, inasmuch as that there was no report from the Military Tribunal before the President while passing the impugned order and he has made pertinent reference to proviso to subsection (3) of section 3 of Martial Law Regulation No.

58. He has placed reliance on Zarar Khan's case, reported in P L D 1980 SC

310. He has also contended that the original order of the President has not been filed. He has next contended that the Provisional Constitution Order 1981 does not hold the field now as it stands repealed by the Proclamation of Withdrawal of Martial Law with effect from 30-12-1985 and the actions taken thereunder do not enjoy protection under Article 270-A of the Constitution and the provisions of the General Clauses Act would not extend to those actions. He has placed reliance on the cases reported in P L D 1974 SC 151; P L D 1989 S C 26; 1941 II All England Reports 499, 504 and 506; P L D 1969 Lah. 420 and P L D 1981 S C 430.

6. On the other hand, the learned counsel for the respondent has urged that the appeal stood abated by virtue of Article 13-A of the Provisional Constitution Order, 1981. He has placed reliance on the cases of Ramzan Muhammad Chaudhry v. Federation of Pakistan, reported in 1986 S C M R 1795; and Hidayatullah v. Federation of Pakistan, also reported m 1986 S C M R

806. He has also made reference to the provisions of Article 26.1 of the Constitution.

7. The determination of abatement of appeal mainly rests on the provisions of Article 13-A of the Provisional Constitution Order, 1981, reproduced below to the extent of its relevancy:

"13-A. Validation of action taken under the Removal from Service (Special Provisions) Regulation, 1969.--(1) All orders made and actions taken or purporting to have been made or taken, against any person under the Removal from Service (Special Provisions) Regulation, 1969, shall, notwithstanding any judgment or order of any Court, Tribunal or other authority be deemed to be, and always to have been, validly made or taken and

(a) no Court or Tribunal, including the Supreme Court a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceedings whatsoever in respect of, or in any manner relating to or arising out of, such orders or actions; (b) any such proceedings pending before any such Court or Tribunal immediately before the commencement of the Provisional Constitution (Second Amendment) Order, 1982 (C.M.LA Order No. 3 of 1982) shall abate forthwith; (c) every judgment or order of any such Court or Tribunal given or made at any time before the commencement of the Provisional Constitution (Second Amendment) Order, 1982 (C.M.L.A. Order No. 3. of 1982) which is repugnant to the provisions of this Article shall be, and shall be deemed always to have been, null and void and of no effect whatsoever; and (d) any person who, having been dismissed, removed or prematurely retired from service under the aforesaid Regulation, has, at any time before the commencement of the Provisional Constitution (Second Amendment) Order, 1982, been reinstated into service and is holding office immediately before such commencement, shall stand retired from service on such commencement. (2) xx xx xx xx xx xx By virtue of the provisions contained in clause (b) to subsection (1) of Article 13-A, the proceedings in respect of all orders made and action taken or purported to have been made or taken against any person under the Removal from Service (Special Powers) Regulation, 1969 (MLR-58), pending before the Supreme Court, or a High Court or a Service Tribunal stood abated forthwith. Article. 13-A was inserted under the Provisional Constitution (Second Amendment) Order, 1982 made on 30-8-1982. There was no scope for examining the legality or propriety of the pending proceedings which stood abated by operation of Article 13-A of the PCO. The Supreme Court decision in the case of Hidayatullah, v. Federation of Pakistan 1986 S C M R 803 is the direct authority on this proposition. Of course, the appeal has survived its extinction, as aforesaid; as no express order was passed to that effect. But there could be a reason for not passing an express order as Article 13-A was inserted in the Provisional Constitution Order, 1981 on 30-8-1982 and the appeal was dismissed for no prosecution shortly thereafter i.e. on 24-1-1983 and an application for its restoration was pending and it was decided as late as 28-7-1986. The ground of abatement of the appeal was actually taken by the respondents in the objections filed to the restoration application but the order of restoration of appeal does not find mention of that objection. Be that as it may, the appeal could not survive its abatement by operation of law even if no express order was passed as, the abatement became effective as soon as Article 13-A of the Provisional Constitution Order, 1981 came into effect.

8. The other objection by the learned counsel for the appellant is that the Provisional Constitution Order, 1981 stands repealed by Proclamation of Withdrawal of Martial Law with effect from 30-12-1985 and the appeal is not liable to be dismissed that it had abated. This objection does not hold field in view of the conclusions arrived at above that the appeal stood automatically abated on the insertion of Article 13-A in the Provisional Constitution Order, 1981 on 30-8-1982. The contention of the learned counsel for the appellant that no protection is provided in the Proclamation of Withdrawal of Martial Law to the actions taken under the Provisional Constitution Order, 1981 finds answer under Article 270-A of the Constitution, which protects Provisional Constitution Order and the actions taken thereunder. Of course the actions which are coram non judice, or have been taken without jurisdiction, or have the taint of mala fides, do not find protection under Article 270-A of the Constitution, as held by the Supreme Court in Saeed Ahmad Khan's case P L D 1974 S C 151 and reiterated in Ghulam Mustafa Khar's case, reported in P L D 1989 SC

26. The order of dismissal of the appellant impugned was passed as far back as 9th March, 1979. The abatement of appeal took place under Article 13-A of the Provisional Constitution Order, 1981 and it did not involve the question $f coram non judice, want of jurisdiction and much less mala fides. The learned counsel for the appellant, however, laid stress on the ground of want of jurisdiction in passing the impugned order. Since it has been held above that the appeal stood abated on 30-8-1982 when Article 13-A was inserted in the Provisional Constitution Order, 1981, the question raised by the learned counsel stands excluded from the jurisdiction of the Tribunal. It may, however, be mentioned that this plea has been agitated on the ground that the impugned order was passed by the President without the report of the Tribunal envisaged under subsection (3) of section 3 of MLR-58. In this respect, the department has placed on record a photostat copy of summary submitted of the President and President's order thereon. Of course, original documents have not been shown to us. The other cases relied upon by the learned counsel for the appellant, referred to above, are not attracted in the case.

9. The other grounds raised in the memo of appeal have not been urged before us.

10. For the reasons recorded above, the appeal is dismissed as having abated by virtue of Article 13-A of the Provisional Constitution Order, 1981. No order is made for costs. M.Y.H./568/Sr.F Appeal dismissed.