P L D 1975 Lahore 999 (PLP)

. At this stage a reference may also be made to the preamble of the Ordinances which read as follows ;‑ "An Ordinance further to amend the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953 and the Pakistan Navy Ordinance, 1961. [Gazette. of Pakistan, Extraordinary, 2nd December 1967]. The following Ordinance approved by the National Assembly of Pakistan under clause (3) of Article 29 of the Constitution, at its meeting held on the 1st December 1967, is hereby published for general informa tion:‑ Whereas it is expedient further to amend the Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Air Force Act, 1953 (VI of 1953), and the Pakistan Navy Ordinance, 1961 (XXXV of 1961), for the purposes hereinafter appearing; And whereas the National Assembly is not in session and the President is satisfied that circumstances exist which render immediate legislation necessary; Now, therefore, in exercise of the powers conferred by clause (1) of Article 29 of the Constitution, and of all other powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance . . . . " The items reproduced above read with the aforesaid preamble are comprehen sive enough to show that the subject‑matter of clause (d) of section 2 (1) and subsection (4) of section 59 can in general be well covered by them) though our specific finding is that they are more expressly covered by the subject "armed forces" and the other items in the instant case can be considered just incidental or consequential thereto. Army Act, itself being, a law well covered by the item of "armed forces", any amendment therein would also be covered by the same and cannot be taken exception to on the ground under discussion above.

4. Learned counsel for the petitioners then submitted that according to Article 131 (1) of 1962 Constitution the subject‑matter in hand being within the exclusive competency of the Central Legislature the law on the same could be made by the Central Legislature by an Act alone and not by the President by means of Ordinances. This plea also has no substance. It is well settled that Ordinance‑making power of the President is coextensive with the legislative powers of the Central Legislature. The Ordinances under discussion were made by the President in exercise of powers under Article 29 of 1962 Constitution and we find no defect in the competency of the President to enact them especially when they were on 1‑12‑1967 approved by the National Assembly (see the preamble reproduced above).

5. The fourth point argued by the learned counsel for the petitioners was that Ordinances III and IV of 1967 were violative of Fundamental Right No. 15 of the 1962 Constitution pertaining to the equality of citizens wherein it was written that "all citizens are equal before law and are entitled to equal protection of law". On this basis it was submitted that they were ab initio void law. Reliance was further placed on the corresponding Article of the 1973 Constitution, namely, Article 25 which guaranteed the similar rights. The contention raised has no substance. It may be pointed out that the Fundamental Rights are guaranteed in Article 8 of 1973 Constitution which reads as follows ;‑ "Article

8. Law inconsistent with or in derogation of Fundamental Rights to be void.‑(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. (3) The Provisions of this Article shall not apply to‑ (a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them, or (b) any of the laws specified in the First Schedule as in force immediately before the commencing day, and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter. (4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in the First Schedule, not being a law which relates to, or is connected with, economic reforms, into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months. Explanation.‑If in respect of any law parliament is the appropriate Legislature, such resolution shall be a resolution of the National Assembly. (5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.‑ Clause (3) above reproduced lays down that the guarantee regarding Fundamental Rights shall not apply to any law relating to the members of the Armed Forces etc. The amendments in hand as brought about by E Ordinances III and IV of 1967 related "to Army Act which pertained to members of Armed Forces and it has not been shown to us that there existed any prohibition in the form of Fundamental Rights against such a law. Army Act is a law which deals with Pakistan Army. Its preamble reads as follows:‑ "An Act to consolidate and amend the law relating to the Pakistan Army. Whereas it, is expedient to consolidate and amend the law relating to the Pakistan Army; It is hereby enacted as follows . . . . " Chapter 1.‑(which consists of sections 1 to 8)‑deals with the "preliminary", enacting, short title and commencement, the persons subject to the Act, secondment to Navy or Air Force, special provision as to rank in certain cases, commanding officer of certain persons subject to the Act, powers to apply Act to certain forces under the Central Government, application of Act to States forces by Order of the Governor‑General, power to declare persons to be on active service and definitions. Chapter II deals with appointment, enrolment and Attestation‑(sections 9 to 15‑A). Chapter III deals with Termination of Service‑(sections 16 to 20). Chapter IV deals with Summary reduction and punishment otherwise than by sentence of court martial (sections 21 to 23): Chapter V deals with offences‑(sections 24 to 59). Chapter VI deals with Punishments (sections 60 to 63). Chapter VII deals with Penal Deductions‑sections 64 to 72).‑Chapter VIII deals with Arrest and proceedings before trial‑(sections 73 to 79). Chapter IX deals with courts martial‑(sections 80 to 118). Chapter X deals with confirmation and revision of finding and sentences‑(sections 119 to 133). Chapter XI deals with Execution of Sentences‑(sections 134 to 142). Chapter XII deals with Pardons, Remissions and Suspension‑(sections 143 to 152). Chapter XIII deals with property of deceased persons, deserters and lunatics (sections 153 to 166). Chapter XIV deals with miscellaneous privileges (sections 167 to 175). Chapter XV deals with rules‑(sections 176 to 177) : and Chapter XVI deals with Transitory provisions‑(sections 178 to 179).‑Army Act is thus essentially a law relating to the mem bers of the Armed Forces of Pakistan. Section 2 (1) (d) takes notice of persons who seduce the army personnel and for this reason makes them subject to this Act. Section 59 deals with procedure for trial of persons who are subject to this Act. The law in the sections under examination is being made for the purpose of deterring persons from tampering with the loyalty of the members of the Armed Forces or from seducing them from their duty or allegiance to Pakistan Government. Looking to the pith and substance of Ordinances III and IV of 1967 it is thus clear that they make amendments in a law relating to the members of the Armed Forces of Pakistan and ‑itself also possesses the same characteristic i.e. they are laws relating to the members of the Armed Forces and though they involve those civilians also who tamper with the army personnel but that incident does not alter their pith and substance or true nature and real characteristic. The involvement of the civilians of the kind mentioned therein is only incidental and ancillary to the real purpose and nature of the law. The law essentially is a law relating to the members of the Armed Forces of Pakistan and when a person violates it he must fall within its clutches and the mere fact that he for example is a civilian does not mean that the law ceases to be a law relating to members of Armed Forces of Pakistan. For the principle that in such cases it is pith and substance or true nature and charac teristic of a law which is to be seen, see Megh Raj and another v. Allah Rakhia and others (A I R 1941 Lab. 177), Megh Baj and others v. Allah Rakhia and others (A I R 1942 P C 27 ), Megh Raj and another v. Allah Rakhia and others (A I R 1947 P C 72), Mada Nagaratnam v. Puvvada Seshayya and another (A I R 1939 Mad. 361 ), Reference Under section 12, Sind Court's Act, 1926 (P L D 1956 Kar. 178), Syed Ghulam Ali Shah v. The State through A. D. M. and Tribunal, Senghar (P L D 1970 S C 253 ) and Subrahmanyan v. Muttuswami Goundan (1940 F C R 188). In the last mentioned case Sir Maurice Gwyer, C. J., stated that "it must inevit ably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its 'pith and substance', or its 'true nature and character' for the purpose of determining whether .it is legislation with respect to matter in this list or in that". Applying the test aforesaid we are of the view that the vires of the impugned laws cannot be challenged in view of Article 8 (3) of 1973 Constitution which itself states‑(to excuse repetition)‑that "the provisions of this Article shall not apply to any law relating to members of the Armed Forces". What has been written above is sufficient to shut out the objections "which had been raised regarding applicability of Fundamental Rights but even otherwise these days there exists a Proclamation of Emergency under Article 232 of 1973 Constitution and a corresponding Order issued by the President in that respect which will show that during the continuation of a Proclamation of Emergency the right to move a High Court for the enforcement of the Fundamental Rights is suspended. This Court had the occasion to interpret the above Article‑(or to be more precise its corresponding Article in 1962 Constitu tion)‑in Abdul Ghani Khan v. Government of West Pakistan and others (P L D 1968 Lab. 1244 ) where it was held that during the subsistence of a Proclamation of Emergency writ petitions for the enforcement of Fundamental Rights could not be filed. Learned counsel submitted that he was not enforcing any Fundamental Right when he was making reference to them but was simply submitting that the law as contained in section 2 (1) (d) and section 59 (4) was an invalid law and could not apply to his clients due to being allegedly in violation of Fundamental Right No. 25 of 1973 Constitution. To say so he submits is an inalienable right of his clients under Article 4 of 1973 Constitution which reads as follows:‑

"Article

4. Right of individuals to be dealt with in accordance with law etc.‑(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular‑ (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." It was held in Abdul Ghani Khan v. Government of West Pakistan and others (P L D 1968 Lah. 1244) that to challenge a law on the ground of its being in conflict with a fundamental right was in reality an attempt to enforce the relevant fundamental right which move was barred during subsistence of a Proclama tion of Emergency. The aforesaid case was decided with reference to certain cases of the Supreme Court quoted therein. In Mir Abdul Baql Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi etc. (P L D 1968 S C 313) it was held at page 329 as follows :‑ "The third and last challenge posed to the validity of the Defence of Pakistan Ordinance is on the basis of the language of clause (2) of Article 6 of the Constitution. This too is untenable, for, as long as the Fundamental Right remains suspended, this question cannot be agitated in the Courts. For, to declare the Ordinance invalid would be tantamount to enforcing a Fundamental Right, which cannot be done as long as the President's Orders No. F. 24 (1)/65‑Pub. dated the 6th September 1965 and the 16th September 1965, are in force. Therefore what cannot be done directly cannot be allowed to be done indirectly." The view taken by this Court was repeated again in Mehreen Zaib‑un‑Nisa v. The Land Commissioner, Multan etc. (Writ Petition No. 1790 of 1972), decided on 19‑2‑1974. Also see Messrs Zarina Gauhar v. Province of Sind and 3 others (P L D 1973 Note 1 at p. 1 ). In the face of the aforesaid legal position as decided by the Supreme Court and followed by this Court consistently the point raised cannot be allowed to‑ be raised at this time and for this reason we need not touch upon the further details of the submissions which learned counsel wanted to go into with reference to clauses (1) and (2) of Article 233 to invoke the Fundamental Right referred to above especially when Proclama tion dated 15‑11‑1973 includes Fundamental Right No. 25, right to enforce which has been suspended.

6. As against the above learned counsel for the petitioners referred to Articles 280 and 232 of 1973 Constitution, which read as follows:

"Article

280. Continuance of Proclamation of Emergency.‑The Proclama tion of Emergency issued on the twenty‑third day of November one thousand nine hundred and seventy‑one, shall be deemed to be a Proclamation of Emergency issued under Article 232, and for the purposes of clause (7) and clause (8) thereof to have been issued on the commencing day, and any law, rule or order made or purporting to have been made in pursuance of that Proclamation shall be deemed to have been validly made. Article

232. Proclamation of Emergency on account of war, internal disturbance, etc.‑‑(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency. (2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force,‑

(a) Parliament shall have power to make laws for a Province, or any part thereof, with respect to any matter enumerated in Part II of the Federal Legislative List or the Concurrent Legislative List or with respect to any matter not enumerated in either of those Lists, as if it were a matter specified in Part I of the Federal Legislative List; (b) the executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised; and (c) the Federal Government may by order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exerciseable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the Province: Provided that nothing in paragraph (c) shall authorise the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exerciseable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts. (3) The power of Parliament to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter. (4) Nothing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of Parliament which Parliament has under this Article power to make, the Act of Parliament, whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnacy, but so long only as the Act of Parliament continues to have effect, be void. (5) A law made by Parliament, which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period. (6) While a Proclamation of Emergency is in force, Parliament may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the Proclamation hag ceased to be in force. (7) A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to ‑ meet within thirty days of the Proclamation being issued and‑

(a) shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolu tion of the joint sitting; and (b) may, by a resolution of a joint sitting, be continued in force for a period not exceeding six months at a time. (8) Notwithstanding anything contained in clause (7), if the National Assem bly stands dissolved at the time, when a Proclamation of Emergency is issued the Proclamation shall continue in force for a period of four months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolu tion of the Senate." There took place a joint sitting of the two Houses of Parliament on 5th and 6th September 1973 when they passed the following Resolutions:‑ "Resolution.‑ That the joint sitting approves under clause (7) of Article 232 of the Constitution, read with Article 280 thereof, the Proclamation of Emergency issued on the 23rd day of November 1971, and the continuance in force of the said Proclamation for the period of six months following the expiration of the period mentioned in paragraph (a) of the said clause (7). Resolution.‑That the joint sitting approves under clause (7) of Article 232 of the Constitution, read with clause (3) of Article 233 thereof, the President's Order of the 14th August 1973, made under clause (2) of the said Article 233 and the continuance in force of the said Order for the period of six .months following the expiration of the period mentioned in paragraph (a) of the said clause (7) of Article 232." Thereafter the two Houses of Parliament again held a joint sitting on the 4th March 1974, when they passed the following Resolution :‑-- "(1) That the joint sitting approves under paragraph (b) of clause (7) of Article 232 of the Constitution, read with Article 280 thereof, the continuance in force of the Proclamation of Emergency issued on the 23rd day of November 1971, for a further period of six months. (2) That the joint sitting approves under paragraph (b) of clause (7) of Article 232 of the Constitution read with clause (3) of Article 233 thereof, the continuance in force of the President's Order of the 14th August 1973, made under clause (2) of the said Article 233, for a further period of six months." The learned counsel submitted that under the above provisions the Proclamation of 23‑11‑1971 was to be considered to have been issued under Article 232 with effect from 14.8‑1973 i.e. the commencing day. It could according to Article 232 (2) (b) continue up to a period of six months at a time. He argued that a joint sitting of the two Houses of the Parliament took place on 5‑9‑1973 approving the Proclamation to last for‑(Further)‑period of six months. The period according to the learned counsel was to end on 14‑2‑1974. However, the two Houses of the Parliament considering that it was to last for six months with effect from 5‑9‑1973 the date of its earlier session and not 14‑8‑1973 passed another Resolution on 5‑3‑1974 extending it for a further period of six months. Learned counsel argued that since the said Proclamation ended on 14‑2‑1974, therefore, what the authorities concerned could have done was to issue a new Proclamation and not to continue the old one, the continuity of which had been allegedly broken in the meantime on 14.2‑1974. In this argument the learned counsel counts the period of six months from 14‑8‑1973 i.e. the day when the Proclamation was initially issued and not from the expiry of the period of first two months thereafter. A true construction of Article 232 (2) (b) shows that for a period of two months the Proclamation is to last in any case. The question of its continuation obviously is to arise from that terminus i.e. the end of the first two months. It is onward from that date that Article 232 (2) (b) authorises its further continuation for another six months. The word 'continued' also contemplates the continuation from a period or terminus where it otherwise would end and not from the right beginning when initially the Proclamation Notification is issued, because, for some period thereafter it has already enured and continued and that period which has already run out cannot be continued over again. Continuation is always for future and not for past. In that view of the matter, the point raised regarding any alleged break having taken place in the continuation of the Proclamation under discussion has not merit and is hereby repelled.

7. Raja Muhammad Anwar the learned Deputy Attorney‑General, brought to our notice the latest amendment which has been made in the 1973 Constitution by the Constitution (First Amendment) Act XXXIII of 1974 whereby clause (3) of Article 199 ousting jurisdiction of this Court regarding members of the Armed Forces of Pakistan etc. has been recast. The aforesaid clause as now recast reads as follows:‑ "Article 199.‑(1) . . . . . . (2)

(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4)

. (5)

Paraphrased in a more simpler form the aforesaid clause states that:‑ An order shall not be made under clause (1) (i) On application made by a who is a member of Armed Forces of person; Pakistan or or on application made in who is for the time being subject relation to a person to any law relating to any of these forces. (ii) In respect of terms and conditions of his service‑ (iii) In respect of any matter arising out of his service ; Or , (iv) In respect of any action taken in relation to him ; (a) as a member of the Armed Forces of Pakistan ; or (b) as a person subject to such law. This will show that jurisdiction of this Court, to speak generally, to issue writs, will be ousted only when the conditions laid down in clause (3) were first fulfilled. As to what are the situations in which such conditions can be said as not to have been fulfilled, is a matter which at the moment we have no intention to dilate upon, because each case will have to depend upon its own facts and circumstances and no exhaustive list in that respect can be attempted on merely illustrative hypothetical basis. For our purpose it is sufficient to state that if a case does not fall within the four corners of the jurisdiction‑ousting conditions, then writs therein can be issued by this Court. Confining ourselves to the facts and circumstances of the present case, however, we must observe that the petitioners have not been able to show anything which may render their trial or convictions without lawful authority and as such the present writ petition is liable to be dismissed on that short ground leaving the question of ouster of jurisdiction to be attended to in some more appropriate case. Learned counsel submitted that it was a case for issuance of a writ of habeas corpus and we should, therefore, admit it to a regular hearing and issue notice and relevant preliminary orders in that respect to the respondents. The law with regard to issuance of such writs is summed up in a passage occurring at pages 124 and 125 of the "Comments on the Laws of England" by Sir William Blackstone (Volume III) (Fourth Edition), published by John Murray, where it is written that "It is necessary to apply for this writ by motion to the Court, `or to a Judge at Chambers', as in the case of all other prerogative writs, certiorari prohibition mandamus & c., which do not issue as a matter of course, without showing some probable cause why the extraordinary power of the crown is called into the party's assistance. For, as was argued by Lord Chief Justice Vaughan (in Bushel's case, 2 Jac. 13.) "it is granted on motion, because it cannot be had of course; and there is therefore no necessity to grant it; for the Court ought to be satisfied that the party hath a probable cause to be delivered". And this seems the more reasonable, because, when once granted, the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner. So that if it is issued of mere course, without showing to the Court or Judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the queen's service, a wife, a child, a relation, or a domestic, confined for insanity or other prudential reasons, might obtain a temporary enlargement by suing out a habeas corpus, though sure to be remanded as soon as brought up to the Court. And therefore Sir Edward Coke, when Chief Justice, did not scruple in 13 Jac. 1 to deny a habeas corpus to one I confined by the Court of Admiralty for piracy; there appearing, upon his own showing, sufficient grounds to confine him". The position in the instant case is the same, because, no reasonable ground has been made out for issuing the writ prayed for and on merits the commission of the relevant offences has not been denied on factual plane in the writ petition.

8. During the conclusion of his submissions, learned counsel for the petitioners, had submitted that in case the writ petition was not admitted we may consider the question of granting him a certificate under Article 185 (2) (f ) to the effect that the case involves a substantial question of law as to the interpretation of the Constitution. As our judgment and order will show the petitioners have not been able to raise any substantial question of law as to the interpretation of the Constitution inasmuch as all the points are such which are either well covered by case‑law on the subject, or otherwise are not of any substantial character and could be disposed of‑(as done in our judgment)‑on bare facts and simple reading of the relevant context, the certificate is refused.

9. The result is that the writ petition is hereby dismissed in limine. S. A. H. Petition dismissed.