P L D 1963 (W (PLP)

MANZOOR QADIR, C. J.‑While dealing with Writ Petitions Nos. 839 of 1962, 582 of 1962, 609 of 1962, 610 of 1962, 747 of 1962, 888 of 1962, 813 of 1962, 956 of 1962, 15 of 1963, 47 of 1963, 585 of 1962, 957 of 1962, 1113 of 1962, 9 of 1963 and 10 of 1963 in Division Bench, a preliminary objection was taken on behalf of the respondents that the validity, legality and propriety of every thing done and of every action or proceeding taken by a Border Allotment Committee during the Martial Law period was clothed with finality and that that finality was protected by Article 250 of the Constitution and that it could not be undone under Article 98 of the Constitution. Since another Division Bench had already taken a view which was contrary to this proposition a Full Bench was constituted to consider this point.

2. After hearing the arguments of all the learned counsel who wished to address us on this point, we are of the opinion that the preliminary objection is well‑founded anti the validity legality and propriety of every thing done and of every action or proceeding taken in connection with the administration of Martial Law by an v Martial Law .Authority or by any person on behalf of a Martial Law Authority during the Martial Law period is completely and finally protected from challenge. Reasons for this conclusion will be given later. Dr. Nasim Hassan Shah with Ch. Khalil‑ur‑Rahman for Petitioners. Malik Muhammad Akram assisted by Sh. Muhammad Iqbal Hussain and Gut Muhammad Butt for Respondents. A. R. Sheikh and Ch. Muhammad Shafi for Respondent No.

2. Dates of hearing: 8th and 9th April 1963. JUDGMENT MANZOOR QADIR, C. J.‑These petitions relate to action taken by Border Allotment Committees before the commencement of the Constitution, i.e., before the 8th of June 1962. A preliminary objection was taken to the jurisdiction of the Court to question the impugned orders. It was said that they were not open to challenge. Since the question was common to all these petitions, we heard them together. At the conclusion of the argument the following short order was pronounced ‑‑ "We are of the opinion that the preliminary objection is well founded and the validity, legality and propriety of everything done and of every action or proceeding taken in connection with the administration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period is completely and finally protected from challenge. Reasons for this conclusion will be given later." Before we could give those reasons a case was argued in the Supreme Court in which points of similar nature were involved. The judgment in that case has now been pronounced. It is not certain that the short order pronounced by us on the 9th of April 1963, remains wholly unaffected by the pronounce ment of their Lordships in the case in question (Civil Appeals Nos. 66, 67, 68 and 69 of 1962 decided on the 7th of May 1963). It seems necessary that these petitions should be re‑argued in the light of the pronouncement of their Lordships of the Supreme Court so that, if necessary, the orders passed in them may be reviewed.

2. Since the short order is not complete without its reasons we proceed briefly to indicate the reasons on which it is based. How far those reasons would need to be modified in view of the pronouncement of their Lordships of the Supreme Court can be determined only after rehearing of these petitions. Those reasons are these

3. Martial Law Regulation No. 88, as amended by Martial Law Regulation No. 93, is to the following effect:‑ "Notwithstanding anything in any law for the time being in force, no proceeding whatsoever shall lie in any Court in respect of any order made or anything done or to be done or intended, expressed or purported to be done or to have been done by any Martial Law Authority in pursuance of any Martial Law Regulation or Martial Law Order. "

2. For avoidance of doubt it is hereby declared that : (a) the expression `order made or anything done or to be done or intended, expressed or purported to be done, or to have been done in paragraph 1 shall include any order made or anything done whether the order or the thing is within the scope of the Regulation or Order or not, or whether the authority making the order or doing a thing had jurisdiction in the matter or not; and (b) "Martial Law Authority" includes a person or body of persons authorized by or under any Martial Law Regulation or Order to perform any function or exercise any powers under such Regulation or Order, and if a question arises whether any person or body is a Martial Law Authority or not the certificate of the Chief Martial Law Administrator or the Zonal Martial Law Administrator that such person or body is Martial Law Authority. "

3. This Regulation shall be deemed to have come into force as from the 8th of October 1958." It is clear from the words of this Regulation that the orders to which it relates were immune from scrutiny or challenge at the time when they were made. It was not possible for any Court at that time to examine them for the purposes of deciding whether they were or were not valid. In other words, it was incumbent upon the Courts to regard all such orders as legal, valid, binding and enforceable.

4. The position, as explained above, remained unaffected by any other legislation till the 6th of June 1962. On that day, President's Order No. 26 of 1962, was passed. That Order came into force immediately upon its enactment, namely the 6th of June i.e., two days before the commencement of the Constitution. By its 7th section it provided as follows: "No Court . . . . . shall call in question the validity, legality of proceeding taken in connection with the administration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period." This provision was evidently made in anticipation of the situation as it would be on the commencement of the Constitution on the lifting of the Martial Law. The provision made by Martial Law Regulation No. 88 (Modified by Martial Law Regulation No. 93 as reproduced already) would stand repealed on the 8th of June. From the 6th to the 8th of June the further provision made by section 7 of President's Order No. 26 of 1962 (as reproduced above) would stand side by side with and in addition to Martial Law Regulation No.

88. On the 8th of June, Martial Law Regulation No. 88 would stand repealed, but section 7 of the President's Order No. 26 would remain in force by virtue of Article 225 (1) of the Constitution. The effect would, therefore, be that the Courts would continue to remain bound to regard everything done and every action or proceeding taken in connection with the Administration of Martial Law by any Martial Law Authority or by any person on behalf of a Martial Law Authority during the Martial Law period as valid, legal and proper.

5. At the time of rehearing of the petitions already dis missed the question whether it is open to us to review a previous order or not may also be argued if any party wishes to do so. Dr. Nasim Hassan Shah with Ch. Khalil‑ur‑Rahman for Petitioners. Malik Muhammad Akram with Sh. Muhammad Iqbal Hussain for Respondents. Date of hearing: 15th July 1963. MANZOOR QADIR, C.J.‑The learned counsel for the res pondents has raised the preliminary objection that in writ jurisdic tion there is no power in the Court to review a decision once given. He contends that as orders were passed on the 9th of April 1963, this Court is functus officio and cannot change them on any ground whatsoever. The learned counsel contends in the alternative that even if it be held that the power to review given by the Code of Civil Procedure is available in relation to decisions given in the exercise of writ jurisdiction, there is no application for review in this case and there is no power in the Court to review a decision already given suo motu. He further argues that even if it be assumed that the power to review existed in the present situation, the extent of the jurisdiction in review is strictly limited and it is not open to this Court in review to correct a view of law previously taken, should it now think that view to have been erroneous. The learned counsel relies on a foreign judgment In re: Prahlad Krishna Kurne (A I R 1951 Bom. 25), in which similar provisions were being interpreted. It was there remarked that it is clear that no Court has an inherent power of review, and that the said power, like the power of appeal, must be expressly conferred by statute. These remarks were made in relation to a prayer for review of a judgment given in the exercise of writ jurisdiction. He also relies on another case from a foreign jurisdiction, Hajee Suleman v. Custodian Evacuee Pro perty (A I R 1955 Madhya Bharat 108), in which it was said that the power to review is not inherent in a Court, and that as there is no provision for the review of orders (under the relevant provisions prevailing in that country), it could not be availed of.

2. The petitioners on the other hand contend that the power to review should be regarded as inherent in the Court and that since there are no express rules in relation to the exercise of writ jurisdiction debarring this Court from achieving what it might consider necessary to meet the ends of justice it should follow that if we are of the view that a wrong decision has been given previously we should be in a position to rectify that error now. It is further contended that the technicalities of the Code of Civil Procedure should not be imported into the writ jurisdiction but only the spirit of the Code and the general principles underlying it should apply. It is argued that the general principle underlying the power of review is to enable the Court to correct its mistakes in the interest of justice. Reliance in this connection is placed on the case of Rukan Din and others v. Hafizuddin and another (P L D 1962 Lah. 161), in which the learned Judges, commenting on another case, remarked as follows :‑ "After hearing arguments, Sulaiman, C. J., had dictated the order in the presence of the parties. One of the counsel then made a request to him not to sign the judgment before reconsidering the question of limitation. Sulaiman, C. J., however, signed the order inadvertently when it was put up with a number of other orders. On the matter coming to his notice again, he passed the following order :‑ `In the exercise of my inherent jurisdiction, I set aside the order and direct that the case should be put up for further hearing.' "

3. Reliance is also placed on an unreported case of this Court, Abdul Jabbar v. Collector of Central Excise and Land Customs Review Application No. 15 of 1959 (Quetta), decided on 1st of October 1959, in which it was remarked that the power of review in the case of an order in a writ petition is not limited to the exact words of Order XLVII, rule 1 Civil Procedure Code. The broad principles underlying that provision can be utilised for this purpose.

4. The position, as it seems to us, is different under the present Constitution, it has been made clear by Article 130 that no Court shall have any jurisdiction that is not conferred on it by the Constitution or by or under any law. Arguments based on the existence of inherent jurisdiction, apart from that conferred by Statute, are, therefore, no longer available. In any case, an. order made in exercise of a judicial power carries with it the incidents of finality so far as that form is concerned, wherever rights accrue under that order. Unless it is provided that an order once made may be reviewed, it would not normally be capable of being reviewed. In the case of writ jurisdiction, the enabling provision in Order XLVII, rule 1 may be imported, but it must not be forgotten that Order XLVII, rule I is only an enabling provision and, therefore, the maximum extent to which the review would be possible would be that which Order XLVII, rule 1 permits.

5. It seems to us that having pronounced orders on the 9th of April 1963, this Court is now functus officio in the matter and cannot rectify an error, even if it be assumed that it has been committed. K. B. A. Order accordingly.