P L D 1953 Lahore 528 (PLP)

MUHAMMAD MUNIR, C. J.--‑This is an application for relief in the nature of habeas corpus under section 491 of the Code of Criminal Procedure by one Muhammad Umar Khan alleging that Maulana Abad-us-sattar Khan Niazi, a member of the Punjab Legislative Assembly, is being illegally detained in prison in Lahore and praying that he be set at liberty. The reply to the writ is that for the breach of a Martial Law Regulation the Maulana is under going a life sentence which has been validated by the Indemnity Ordinance, Ordinance II of 1953. The facts giving rise to this application may be stated very briefly. Near the end of February last serious disturbances, in volving loss of life and property, broke out in Lahore. In the beginning they took the form of‑ processions shouting of slogans and carrying of ignominious effigies of some of the highest Government dignitaries. The authorities having declared such demonstrations unlawful, the processions took the form of riotous mobs and began indulging in attacks, loot, arson and murder. The civil authorities attempted to suppress the disorder, but the tumult grew in strength and volume, assumed the form of an open revolt and the civil authorities soon found themselves wholly unable to cope with the situation. The result was that with the consent of the Central Government martial law was proclaimed in the area of the Corporation of the City of Lahore from 1‑30 p.m. on 6th March 1953. Major‑General Muhammad Azam Khan, Officer Commanding the Tenth Division, stationed at the Lahore Can tonment, constituted himself Martial Lave Administrator for the area and took complete control of the situation. He issued a series of Martial Law Regulations and Orders and set up several special Courts manned by military personal for the trial and punish ment of persons contravening such regulations and orders. On the allegation that the Maulana abetted the murder of Firdaus Ali Shah, a Deputy Superintendent of Police, and by speeches delivered during the disturbances he contravened section 124‑A of the P. P. C., he was tried by one of the special military courts and on 7th May 195:1, was sentenced to death on the charge under section 124‑A read with Martial Law Regulation No. 8, the charge of murder not having been proved. His sentence was, however, commuted into life imprisonment by the Martial Law Administrator. The Martial Law was withdrawn on 13th May 1953 and throughout its continuance the Civil Courts kept functioning. Earlier, namely, on 9th May 1953, the Governor -General, acting under section 42 of the Constitution Act, had promulgated an Ordinance, No. II of 1953, indemnifying servants of the Crown and other persons in respect of acts done by them in good faith under Martial Law and validating sentences passed by special military courts. The application alleges that the introduction of Martial Law and constitution of the special military court, which sentenced the Maulana, were illegal, that the Court did not act in a judicial capacity and in the procedure adopted by it, it did not conform to the ordinary forms of criminal trials, that the necessity for martial law, if it ever existed, had ceased on 23rd March and thereafter the continuation of the martial law regime and the functioning of special military courts was illegal and that the indemnity Ordinance No. II of 1953, inasmuch as it gives to the Central Government the power to determine the martial law period and purports to validate sentences which were essentially in the nature of advice tendered by special military courts to the Martial Law Administrator, is ultra vires. The essential question in the case is whether section 7 of the Indemnity Ordinance, which keeps alive sentences passed by special military courts, is intra vires the Governor‑General qua his Ordinance promulgating powers. Before we seek an answer to this question, it is necessary to define the precise scope and character of a martial law regime, the conditions and circum stances which usher such regime and the limits, if any, within which the military can act in the area subject to that regime. In constitutional jurisprudence, martial law is used at least in four different senses. In the first sense, it is used with reference to the law relating to discipline in the armed forces of the State which is administered by tribunals, called Courts Martial. These courts are constituted for the purpose of regulating the government of the military and their jurisdiction in no circumstances extends to the civilians. In our country, martial law in this sense means the law administered by Courts Martial constituted under the Army Act, the Naval Discipline Act and the Air Force Act. In the second sense, the word "martial law" means "military Government in occupied territory" and is used to describe the powers of a military commander in times of war in enemy territory. In this sense, martial law is recognized by Public Inter national Law as a part of the jus belli. The Duke of Willington had this kind of martial law in mind when in a debate in the House of Lords he said: "Martial law is neither more nor less than the will of the general who commands the army. In fact martial law means no law at all." Distinction between this form of martial law and the other two, which will presently be defined, has been well brought out by an American writer, Mr. Magoon, in his Reports on the Law of Civil Government in Territories subject to Military Occupation. He says: "A military Government takes the place of a suspended or destroyed sovereignty, while martial law, or, more properly, martial rule, takes the place of certain governmental agencies which for the time being are unable to cope with the existing conditions in a locality which remains subject to the sovereignty. The occasion of military Government is the expulsion of the sovereignty theretofore existing, which is usually accomplished by a successful military invasion. The occasion of martial rule is simply public exigency which may rise in time of war or peace. A military government since it takes the place of a deposed sovereignty, of necessity continues until a permanent sovereignty is again established in the territory. Martial rule ceases when the district is sufficiently tranquil to permit the ordinary agencies of government to cope with existing conditions." In the third sense in which it is a part of English Consti tutional Law, martial law means the rights and obligations of the military under the common and statute law of the country to repel force by force while assisting the civil authorities to suppress riots, insurrections or other disorders in the land. In American Constitutional Law, martial law in this sense is a form of the police power of the State and means law which has application when the military arm does not supersede civil authority but is merely called upon to aid such authority in the execution of its civil functions. This form of martial law is well recognized by the Law of England and there are several ancient statutes which make it incumbent not only on the citizens but also Crown servants, including the army, to assist civil authorities in suppressing disorders in the land. Cases) illustrative of this law are Rex v. Kenneth (5 Car. & P. 282) and Rex v. Pinney (5 Car. & P. 254), but its best exposition is to be found in Lord C. J. Tindal's charge to the Bristol Grand Jury on the Special Commission, on the 2nd of January, 1832, 172 E. R.

966. He said: "It has been well said, that the use of the law consists, first, in preserving men's persons from death and violence next, in securing to them the free enjoyment of their property; and although every single act of violence and each individual breach of the law, tends to counteract and destroy this its primary use and object, yet do general risings and tumultuous meetings of the people in a more special and particular manner produce this effect, not only removing all security, both from the persons and property of men, but for the time putting down the law itself, and daring to usurp its place. The law of England hath, accordingly, in proportion to the danger which it attaches to riotous and disorderly meetings of the people, made ample provision for preventing such offences, and for the prompt and effectual suppression of them whenever they arise; and I think it may not be unsuitable to the present occasion, if I proceed to call your attention, with some degree of detail, to the various provisions of the law for carrying that purpose into effect. In the first place, by the common law, every private person may lawfully endeavour, of his own authority, and without any warrant or sanction of the Magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he shall see coming up, from joining the rest; and not only has lie the authority, but it is his bounden duty as a good subject of the King, to perform this to the utmost of his ability. If the riot be general and dangerous he may arm himself against the evil doers to keep the peace. Such was the opinion of all the Judges of England in the time of Queen Elizabeth, in a case called the Case of Arms (Popham's Rep. 121), although the Judges add, `that it would be more discrete for every one in such a case to attend and be assistant to the justices, sheriffs, or other ministers of the King in doing this'. It would undoubtedly be more advisable so to do; for the presence and authority of the Magistrate would restrain the proceeding to such extremities until the danger was sufficiently immediate, or until some felony was either committed or could not be prevented without recourse to arms; and at all events, the assistance given by men who act in subordination and concert with the civil magistrate, will be more effectual to attain the object proposed than any efforts, however well‑intended, of separated and dis united individuals. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself and upon his own responsibility in suppressing a riotous and tumultuous assembly; and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the common law. And whilst I am stating the obligation imposed by the law on every subject of the realm, I wish to observe, that the law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation and invested with the same authority to preserve the peace of the King as any other subject. If the one is bound to attend the call of the civil magistrate, so also is the other; if the one may interfere for that purpose when the occasion demands it, without the requisition of the magistrate, so may the other too; if the one may employ arms for that purpose, when arms are necessary, the soldier may do the same. Undoubtedly the same exercise of discretion which requires the private subject to act in subordination to and in aid of the magistrate, rather than upon his own authority, before recourse is had to arms, or to operate in a still stronger degree with a military force. But, where the danger is pressing and immediate; where a felony has actually been committed, or cannot otherwise be prevented; and from the circumstances of the case no opportunity is offered of obtaining a requisition from the proper authorities; the military subjects of the King, like his civil subjects, nor only may, but are bound to de their utmost, of their own authority, to prevent the perpetration of outrage, to put down riot and tumult, and to preserve the lives and property of the people." It will be noticed that the justification of this form of martial law, if it can at all be so‑called, is the common law of England and several statutes which create rights in and impose obligations on citizens and servants of the Crown in the matter of suppres sion of riots. "If, then, by martial law", says Dicey, "be meant the power of the government or of loyal citizens to main tain public order, at whatever cost of blood or property may be necessary, martial law is assuredly part of the law of England." In our country, rights and duties of citizens and servants of the Crown, including the military, can only be gathered from the scattered provisions of the Pakistan Penal Code, the Criminal Procedure Code and the Police Act. Every person, whether a Crown servant or not, is justified under the law of this country to assist others, including Government servants, in the protection of person and property. This right of a person to protect the person and property of others from harm is recognized by those sections of the Penal Code which deal with the right of private defence. In times of disorder a magistrate can under section 129 of the Code of Criminal Procedure call in the military to sup press a riot and under section 130 of the same Code, in the absence of a magistrate, a commissioned military officer may disperse an unlawful assembly by force and nothing done in good faith by such officer is an offence. Section 128 of that Code imposes on every person an obligation to assist the magistrate, when so required, in the dispersal of an unlawful assembly and an omission to assist in these circumstances is made punishable by section 187 of the Pakistan Penal Code. Under section 17 of the Police Act, in times of disturbance a police officer not below the rank of an Inspector can apply to the nearest magis trate to appoint as special police officers as many residents of the locality as such police officer requires. In times of crisis the Governor‑General can by a proclamation under section 102 of the Constitution Act, declare a state of emergency giving to the executive wide rule‑making powers and greater freedom of action to preserve peace and order. On comparing the provisions of our own law with those of English Law it will be apparent that the rights and duties of citizens, including servants of the Crown and the military, are substantially identical under both systems. It is, however, a misuse of the term to describe these rights and duties as martial law; they are no more than a part of the civil law of the land. Just as the transition from civil tumult to rebellion and from rebellion to war is easy and imperceptible, so the common‑law doctrine of the right to use force against force can be extended to justify the use of necessary force where riots have assumed the form of armed insurrection or open rebellion amounting to war. There is authority for this proposition in the Privy Council case of Tilonko v. Attorney‑General of Natal (1907 A C 93), which was followed by the House of Lords in Clifford v. O'Sullivan ((1921) 2 A C 570), and the Queen's Bench case, Phillips v. Eyre ((1870) 6 Q B 1). On such occasions the Civil Courts may still function, though a delicate position may develop where, while the Courts are functioning, the military seek to oust their jurisdiction by setting up their parallel tribunals and claiming paramountcy for them. The situation that actually arose in Wolfe Tone's case (27 How. St. Trials, 613) is so apt an example of such crisis that it will be interesting to reproduce that part of the proceedings in the Court of King's Bench where counsel moved for habeas corpus for the pro duction in Court of Mr. Tone's body who had been sentenced to death by a Court Martial on the charge of high treason:‑ "I do not pretend to say, observed Mr. Curran' that Mr. Tone is not guilty of the charges of which he was accused: I presume the officers were honourable men; but it is stated in the affidavit, as a solemn fact, that Mr. Tone had no Com mission under his majesty, and therefore no court‑martial could have cognizance of any crime imputed to him, while the Court of King's Bench sat in the capacity of the great criminal Court of the land. In times when war was raging, when man was opposed to man in the field, courts‑martial might be endured: but every law authority is with me, while I stand upon this sacred and immutable principle of the constitution " that martial law and civil law are incompatible; and that the former must cease with the existence of the latter. This is not the time for arguing this momentous question. My client must appear in this Court. He is cast for death this day. He may be ordered for execution while I address you. I call on the Court to support the law. I move for a habeas corpus to be directed to the provost‑marshal of the barracks of Dublin, and major Sundys to bring up the body of Mr. Tone. Lord Chief Justice (Kilwarden).‑Have a writ instantly prepared. Mr. Curran.‑My client may die while this writ is preparing. Lord Chief Justice.‑Mr. Sheriff, proceed to the barracks, and acquaint the provost‑marshal that a writ is preparing to suspend Mr. Tone's execution ; and that he be not executed. (The Court awaited, in a state of the utmost agitation, the return of the Sheriff.) Mr. Sheriff.‑My Lords, T have been at the barracks in pursuance of your order. The provost‑marshal says he must obey major Sundys. Major Sundys says he must obey Lord Cornwallis. Mr. Curran.‑Mr. Tone's father, my Lords, returns, after serving the habeas corpus ; he says general Graig will not obey it. Lord Chief Justice.‑Mr. Sheriff take the body of Tone into your custody. Take the provost‑marshal and major Sundys into custody; and show the order of this Court to general Graig. Mr. Sheriff (who was understood to have been refused admittance at the barracks) returns.‑T have been at the barracks. Mr. Tone, having cut his throat last night, is not in a condition to be removed. As to the second part of your order, I could not meet the parties. (A French Emigrant Surgeon, whom General Graig bad sent along with the Sheriff, was sworn). Surgeon‑‑I was sent to attend Mr. Tone this morning at four o'clock, his windpipe was divided. I took instant measures to secure his life, by closing the wound. There is no knowing, for four days, whether it will be mortal. His head is now kept in one position. A sentinel is over him, to prevent his speaking. His removal would kill him. Mr. Curran applied for further surgical aid, and for the admission of Mr. Tone's friends to him. (Refused). Lord Chief Justice.‑Let a rule be made for suspending the execution of Theobald Wolfe Tone ; and let it be served on the proper persons. (The prisoner lingered until the 19th day of November; when he expired, after having endured in the interval the most excruciating pain)." Where any such conflict between civil law and martial law arises, the antagonism becomes so irreconcilable that in the conflict one or the other must perish, the Civil Courts claiming that they have jurisdiction to judge whether war exists to oust their jurisdiction and the military commander asserting that there is war and that his will is supreme. The Privy Council had some such position in view when their Lordships observed in Marais v. G. O. C. Lines of Communications (1902 A C 109) that where war prevails the ordinary courts have no jurisdiction over the action of the military but that it is for the Civil Court to decide whether a state of war exists or not. If riot, rebellion or insurrection outrun the ordinary sources of law and order and assume such proportions that civil authorities become powerless to deal with it, the State would naturally look to its armed forces for assistance. If the military take over in any such contingency and the general commanding the army completely, ousts or subordinates civil authorities in the area, the law applied by him during the period of his occupation is martial law in sensu strictiore. During such period, all constitutional guarantees are suspended and the officer in chief command of the forces operating in the troubled area acquires for the time being supreme legislative, judicial and executive authority. In other words, he himself fixes the limits and definition of his own authority. He makes his own law, sets up his own Courts and no civil authority, while he is in command, may call into question what he does. In this sense, therefore, martial law is not law at all but the will of the officer commanding the army. A commander who steps in to quell a rebellion inaugurates a reign of law lessness and a civil authority, legislative or executive, which hands over the civil populace of a locality to the military, places the life, liberty and property of the people at the feet of the general who commands the army. In soma constitutions, as for instance, the French Constitution there is provision for the declaration of what is called "a state of siege". Then such a declaration is made, even fundamental rights are suspended and during this suspension any person is liable to arrest, imprisonment or execution at the will of a military tribunal consisting of a few officers. Martial law in this sense is completely foreign to British or the American Constitution. And in our own Constitution there is nothing enabling the military to step in and take over to the exclusion of civil power, though in living memory there have been four occasions when people groaned under or enjoyed the blessings of martial law. In seeking to discover the source and reason of martial law, the best course to adopt is to find an answer to a few simple questions. In case of war or invasion do the military have a right to act suo motu? If so, do they have the same right where there is a riot, insurrection, revolt or rebellion which, if not suppressed immediately, may become a successful revolution? If the answer to both these questions be in the affirmative, a third question, and that is the most important question, immediately presents itself, namely, what are the powers of the military when called upon to act in any such contingency? Can they, for the purpose of suppressing the riot or rebellion, make their own Rules and Regulations, set up their own courts to enforce such Rules and Regulations and thus infringe the high of freedom of person and of enjoyment of property to which citizens are entitled under the ordinary law in peace time? If con stitutional jurisprudence furnishes an answer to these questions, that is martial law sui generis. Most constitutional writers affirm that where civil power is a deposed, suspended or paralysed by domestic disturbances, the military are entitled to step in to fill up the void but these writers are equally clear in their opinion that while so acting the legality or excusability of any action taken by the military will be judged by "necessity" and that such judgment will lie with the civil Courts ex post facto. Thus martial law is the law of military necessity, actual or presumed in good faith. Whether where the defence of necessity and good faith cannot be founded on civil law, e.g., right of private defence or the use of force to disperse unlawful assemblies and there is no indemnity bill, it will be recognized by civil Courts is an open question though observations occur in several cases clearly indicating that such necessity will be recognized as a good defence Phillips v. Eyre (supra); Tilonko v. Attorney‑General of Natal (supra). If martial law is a law and its limits are prescribed by necessity, then (1) Not only the Crown has the prerogative to proclaim martial law but without any such proclamation the military can take over where by war, insurrection, rebellion or tumult civil authority is deposed, suspended or paralysed; (2) all acts done by the military which are either justified by the civil law or were dictated by necessity and done in flood faith will be protected, even if there be no bill of indemnity; (3) while preventive action for the duration of the martial law will be valid, punitive action will generally be invalid; (4) martial law will cease ipso facto with the cessation of the necessity for it; and (5) sentences of confinement by military courts will expire with the expiry of the martial law. If martial law is not law, it is obvious that when the military step in and take charge of the civil administration in the disturbed area, setting up their own courts, any action taken by the unless justified by civil law would be entirely illegal, making them liable to be sued or prosecuted for all encroachments on rights of person and property unless, by subsequent legislation, their acts are condoned or excused by indemnity legislation. Now because the professed justification for the military to step in is the disturbance of public tranquillity and the object is to restore civil authority to its normal condition, the scope of the activities of a military commander extends only to taking such action as is necessary for the restoration of law and order, and all acts that fall within the scope of that activity will certainly be validated for the martial law period by an indemnity bill. A military commander, therefore; incurs a serious risk if beyond doing what is necessary for the restoration of law and other he takes upon himself other functions which have nothing to do with the restoration of normal conditions. He may take property, liberty and even life, if in good faith he considers such taking necessary, and if he does so it is not because he has any legal right to do it, but because he may reasonably expect the legislature to ratify what he has done in good faith. And while this condition of affairs exists there is universal consensus of opinion that Civil Courts cannot call into question the legality or propriety of his action. Durante bello, therefore, the will of the military commander is as supreme in the area as if he were in military occupation of the enemy territory the only difference being that whereas the subjects of a belligerent country, who reside in occupied territory, have no legal right against the military, the persons on whom the military commander exercises jurisdiction in his own country in times of peace have rights with which he can interfere only in the expectation that after the termination of the state of affairs his actions would be ratified by the legislature. As Willes, J. remarked in Phillips v. Eyre (supra) "there may be occasions in which the necessity of the case demands prompt and speedy action for the maintenance of law and order at whatever risk, and where the governor may be compelled, unless he shrinks from the discharge of paramount duty, to exercise de facto powers which the legislature would assuredly have confided to him if the emergency could have been foreseen, trusting that whatever he has honestly done for the safety of the State will be ratified by an Act of indemnity and oblivion". It would therefore follow from this that the moment martial law is withdrawn all orders of the military including sentences of imprisonment which were intended to continue after the cessation of the martial law cease to have force and effect unless they are kept alive by legislation. Now the setting up of special military courts with a view to punishing people for contravention of Martial Law Regulations or Orders can be justified only to the extent that the orders passed by such courts were during the martial law period considered necessary for the preservation or restoration of order. If the object in inflicting sentences of imprisonment was not, preventive but punitive in the sense in which Civil Courts punish criminals, the sentences can have no reference to necessity and would, therefore, automatically come to an end with the withdrawal of the martial law. It has been said on more than one occasion that special courts or military tribunals set up by a military commander are not really courts but merely advisers to the commander in charge of the area and that as such their orders cannot be called in question by Civil Courts by writs of habeas corpus. They are essentially in the nature of executive action taken with the object of preventing mischief and disorder during the martial law period. Such orders, therefore, expire ipso facto on the expiry of such period, because the occasion which necessitated them ceases to exit. But so long as martial law lasts such orders cannot form justicible issues before the Civil Courts, not because the Civil Courts have no jurisdiction but because their jurisdiction can at any time be ended by show or use of force by the military. Once however, martial law is lifted, the threat to the existence of the Civil Courts disappears and they can then not only function in a normal way but also call in question the acts of the military whose only defence can either be the right of private defence or the right to disperse unlawful assemblies or some indemnity legislation. In the application are reproduced extracts from some depart mental instructions to martial law chiefs which are stated to have been issued by the A. G.'s Branch from Simla in 1942. These instructions are of course confidential and have not been duly proved but since they bring out the exact position very lucidly, they are quoted below irrespective of their authenticity or otherwise. They run as under:‑ "In case of open rebellion, where the Military force available may, unless the Military Commander assumes exceptional powers, prove inadequate to meet the emergency, he should enforce Martial Law, as directed in Chapter II, supplementing the ordinary law as may be necessary, but no more than is necessary, by military tribunals. In general, he should confine the exercise of his exceptional powers to taking such measures as can, on the restoration of order, be shown to have been necessary for ensuring the safety of his troops and suppressing the rebellion. Any exceptional measure taken must not only be clearly directed to the attainment of these objects, but be reasonably likely to achieve them." (Introduction para. 5). "Martial Law means the suppression of ordinary law in any part of the country by military authority, whose sole duty is to restore such condition of things as will enable the civil authority to resume charge. In order to attain that object the military officer may issue such orders, and enforce them in such manner, as may be necessary for that purpose only. His authority is, for the time being supreme, but in practice the amount of his interference with the civil administration and the ordinary courts is measured by military necessity. He should not interfere beyond what is necessary for the restoration of order, and should, whenever possible, act in consultation with the local civil authorities. Offenders should be handed over to the ordinary courts for trial wherever this is possible ; but persons charged with offences which are not offences against the civil law cannot be so handed over. The military officer has power to try an offender and punish him under Martial Law, but he should not exercise the power except where it is necessary for him to do so for the purpose of restoring order or where it is not possible to keep an accused person in arrest until he can be handed over for trial by the ordinary courts. Such occasion may arise if communications are interrupted during a considerable period, but even then the military officer can generally arrange for the attendance of a civil Magistrate to whom prisoners can be handed over for trial, and this should be done when possible. If the military officer has to try an offender, though this should only be necessary in very exceptional circumstances, the trial should follow the forms of military law and a record must be kept of every trial so held, and of every punishment inflicted under Martial Law. Any punishment so inflicted must not be excessive; regarding this the military officer should observe the instructions contained in Chapter III of this manual". (Chapter II, paragraph 2). "

9. Instructions should be issued as to the disposal of cases in which the accused person could be charged either with an offence against the ordinary law or with a breach of a Martial Law Regulation. Wherever possible, such cases should be dealt with as offences against the ordinary law and be tried by the ordinary courts. Since there is to be as little interference as possible with normal conditions, it follows that so long as the ordinary courts are sitting, all offences which are not breaches of Martial Law Regulations, and all disputes between private persons, should be dealt with in those courts". "

11. Since Martial Law owes its existence to necessity, the justification of all acts done under Martial Law depends on their being necessary. The Military Officer must at all times be guided by military exigencies of the situation. Having pro vided for these, he should confine himself to action directed to the restoration of order. It should be borne in mind that improved administration is not the object of Martial Law, that example and punishment are not its end, but only its means, and allowable only so far as necessary for its legitimate object; and that its severities can only be justified when they are necessary for the restoration of order and the re‑estab lishment of civil authority". "There should be no greater interference with liberty or property than the situation renders necessary. Any temptation to improve, or attempt to improve, on the normal state of things prior to the outbreak, in accordance with the pre dilections of the administrator and not on grounds of military necessity, must be resisted". (Chapter III, paragraph 1). The instructions rightly emphasize that; (1) the sole duty of the military is to restore such condition of things as will enable the civil authority to resume charge; (2) the commander should confine the exercise of his exceptional powers to taking such measures as can, on the restoration of order, be shown to have been necessary for ensuring the safety of his troops and suppressing the rebellion; (3) all offences under the ordinary law and disputes between private parties should be kept to be determined by the Civil Courts ; (4) any temptation to improve on the normal state of things prior to the outbreak, in accordance with the predilections of the Commander and not on grounds of military necessity, must be resisted; and (5) improved administration is not the object of martial law and that example and punishment are not its end but only its means. Bearing in mind the conclusions arrived at, we may now approach the question whether validation of current sentences of imprisonment is properly within the scope of indemnity legislation and whether section 7 of the Indemnity Ordinance, Ordinance II of 1953, has validated the sentence in question. The important provisions of this Ordinance, are as follows:‑ "2. (2) `martial law period' means the period beginning on the 6th day of March 1953, and ending on such day as the Central Government may by notification in the Official Gazette, declare". "3. (1) No suit, prosecution or other legal proceeding shall lie in any court against any servant of the Crown for or on account of or in respect of any act ordered or done by him or purporting to have been ordered or done by him in the martial law area during the martial law period for the purpose of main taining or restoring order or of carrying into effect any regula tion, order or direction issued by any authority responsible for the administration of martial law in the said area to which he was subordinate; and no suit, prosecution or other legal proceeding shall lie in any court against any other person for or on account of or in respect of any act done or purporting to have been done by him under any order of a servant of the Crown given for any such purpose as aforesaid: Provided that the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served thereby". "

6. All sentences passed during the martial law period by a court or other authority constituted or appointed under martial law and acting in a judicial capacity shall be deemed to have been lawfully passed, and all sentences executed according to the tenor thereof shall be deemed to have been lawfully executed". "

7. Every person confined under and by virtue of a sentence passed by a court or other authority constituted or appointed under martial law and acting in a judicial capacity shall con tinue liable to confinement until the sentence, reduced by remissions, if any, earned under the rules applicable to the serving of such sentence, is served, or until he is released by order of the Central Government". Section 5 renders lawful the seizure, confiscation or destruc tion of or damage to property under the direction of a servant of the Crown and makes claims for restoration or compensation in respect of any such property inadmissible. Section 8 makes sections 6 and 7 applicable to sentences passed for offences which may have been committed before the beginning of the martial law period. It will be apparent from these provisions that the Ordinance validates not only acts ordered or done in good faith for the purpose of maintaining or restoring order but all sentences execu ted and orders of seizure or destruction of property made during the martial law period. And section 7, which is the section relevant to the present case, keeps alive after the martial law, period all unexpired sentences of confinement passed by a court or a martial law authority in a judicial capacity. The question is whether this confirmatory provision conflicts with the principle that when martial law is withdrawn and civil power fully restored, all orders passed by the military must expire on such withdrawal. In England no such confirmatory provision appears ever to have been passed since the time of Edward III though there have been more than a dozen "indemnity bills" in the history of that country. In Ireland and the colonies also there have been several such bills without any confirmatory provision. In fact in pure Anglo‑Saxon system of law the setting up of military tribunals to exercise what in substance are judicial powers is not recognized at all. This, to my mind, is the true effect of the House of Lord's decision in Clifford v. Sullivan (supra) and the Privy Council decision in Tilonko's case (supra), where the true distinction between "Courts" and "Courts Martial" has been brought out. The decision of the Supreme Court of United States in Moyer v. Peabody (212 U S 78), lays down very much the same principle. Willoughby, the celebrated American Constitutional writer, while commenting on this case, observes: "It will be observed that in this case the court did not recognize the right upon the part of the military to establish courts for the trial and punishment of persons, but merely their right, as a preventive, precautionary or police measure, to keep in custody for the time being, persons, who, it was upon reasonable grounds, believed were, by their actions, fomenting the disorders which the troops were endeavouring to put down. This detention was, therefore, essentially of the same nature as any other acts, which the troops might take to the same end." In more recent times, however, there have been several instances of such confirmatory legislation. Thus in Tilonko's case (supra) an indemnity act giving effect to the sentences imposed by a military tribunal in Natal was recognized by the Privy Council to be valid. In the Case of Good Hope, the sentences were revised by a commission and confirmed by section 5 (1) of Act 4 of 1902. In the Union of South Africa such legislation was first passed in 1914 and repeated in 1915 and 1922. In the Indo‑Pakistan sub continent besides the present Ordinance there are three previous instances of such legislation, namely, Act XXVII of 1919 (Punjab Disturbances), Ordinance IV of 1930 (Sholapur Disturbances) and Ordinance XVIII of 1943 (Sind Disturbances). The validity of such legislation was taken for granted by the Bombay High Court in Emperor v. Chanappa Shantirappa (I L R 55 Bom. 263). Relying on the case of Tilonko (supra) and Phillips v. Eyre (supra) Mr. Faiyaz Ali rightly points out that we are not concerned with the propriety or impropriety of the policy of the legislation, which is a matter for debate and decision in the legislature, the sole question we are called upon to determine being whether the Governor‑General had the authority to enact section 7 of the Ordinance. If the answer to this question be in the affirmative, there can be no question but that the present petition will have to be dismissed. It is not disputed that section 7 of the Ordinance applies to the sentence in question, though a faint effort was made by Mr. Suhrawardy against the application of this section on the ground that the sentences mentioned in the section are by a Court or authority acting "in a judicial capacity" and in this connection reference was made by him to the case of Clifford v. Sullivan (supra) where the House of Lords held that a military Court is not a Court and merely acts in an advisory capacity to the commander and that, therefore, the proceedings before it are not criminal. The section expressly states that the sentences contemplated are by a Court or other authority constituted or appointed under martial law and the words "acting in a judicial capacity" seem to have been merely to indicate adjudications by special military Courts set up by the Administrator, resulting in sentences of imprisonment. On a perusal of the section there can be no doubt that the sentences mentioned are sentences of the kind in the present case, namely, inflicted by special military Courts, under Regulation No. 1 (a). The sentences in question would, therefore, remain effective under section 7, unless that section be shown to be ultra vires. On the question of ultra wires the point most mooted was that the Ordinance has in effect validated a period of no law and all legislative, executive and judicial acts done by or under the authority of a single individual The point raised is that if the legislature had passed a law appointing the officer Commanding the Tenth Division to act as Martial Law Administrator ex officio giving him full powers to make laws and to set up special courts for the administration of those laws, the law would have been ultra wires, because it would have been a clear instance of delegated legislation, and that since such law would have been in valid, the acts done by or under the authority of the officer commanding when he was the sole legislative judicial, and executive authority for the martial law area cannot be validated, There can be no doubt about the position that the legislature cannot validate acts of military officers which it could not constitutional ly have authorized by prior legislation. In view of the growing complexity of human society and the rules that are becoming increasingly necessary to regulate its activities to a modern state, the subject of delegated legislation has acquired considerable importance and in recent times has attracted special attention of Judges and jurists. It now seems to be fairly well settled that if the legislature defines the principle and policy of an enactment and subject to well defined restrictions and limitations delegates g to a named authority the power to carry out the object of that enactment, including the power to make rules for that purpose, the legislation does not amount to delegated legislation and is perfectly constitutional. Among the more important cases on the point are Harkishandas v. Emperor (A I R 1944 Lah. 33); Emperor v. Benoari Lall Sarma (A I R 1945 (P C) 48; A I R 1943 (F C) 36); Charles Russel v. The Queen (1882 (7) A C 829); Queen v. Butah (1878 (3) A C 889). In the present case, it is contended that, if the legislature had merely appointed the Officer Commanding the Tenth Division as the Chief Martial Law Administrator to do whatever he liked in the martial law area, it would have amounted to delegated legislation and, therefore, the law giving such unfettered powers to him would have been ultra vices, and since what if enacted by the legislature would have been ultra vires, the acts done in exercise of an unlimited authority must remain invalid and cannot be validated by retrospective legisla tion. Mr. Faiyaz Ali's reply to this contention is that the precise question to be determined is not whether if the legislation had been in the form suggested it would have been ultra vices but whether the validating legislation actually enacted amounts to delegated legislation, the two questions not being identical. The point needs further explanation and before we answer the question it is necessary to state in detail what the Administrator did during the martial law regime. A copy of the Martial Law Orders and Regulations supplied to us shows that Major‑General Muhammad Azam Khan constituted himself the Chief Administrator in martial law area, with authority for himself to issue martial law re gulations and orders and to appoint special courts for the trial and punishment of all contraventions of such orders and regulations. By another order he appointed Hafiz Abdul Majid, Chief Secretary to Government, Punjab as the Deputy Chief Administrator and six senior military officers, of whom two were Brigadiers and four Lieutenant‑Colonels, as Administrators with authority to them to appoint their sub‑administrators. By Regulation No. 1, the martial law area was divided into sectors and each of these sectors was put in charge of an administrator. By Regulation No. 1(a), he appointed special Courts of two kinds (1) special military Courts and (2) summary military Courts, their respective jurisdic tion having been clearly defined. The procedure to be observed by them and their power to inflict sentences were similarly delineated. By Regulation No. 2 the ordinary criminal courts were permitted to exercise jurisdiction in respect of offences other than those created by the regulations or connected with the disturbances. By Regulation No. 8, certain offences were made punishable with death, transportation for life or imprisonment which could extend to fourteen years. The point sought to be made by Mr. Faiyaz Ali is that when the legislature passed the Indemnity Ordinance it must have known in what manner and on what principles the martial law administration had been carried on and that the validating legislation must have been passed keeping in view the manner and principle of such administration. The legislature, the argument proceeds, must therefore be presumed to have approved the various regulations and orders by which Courts were appointed, their powers and 1 procedure defined, and the law to be administered by them duly notified. If the legislature had passed an Act recognising or defining the principle on which martial law was in fact admi nistered, no objection to it could have been taken on the ground that it did not contain the principle or policy of the legislation and that it delegated uncontrolled and unfettered legislative functions to the Officer Commanding. What has been done could originally have been permitted to be done, and no objection to such ex post facto legislation can be taken on the ground o retroactivity. We think Mr. Faiyaz Ali's argument is unanswer able and that no exception can be taken to the Indemnity Ordinance on the ground that it amounts to delegated legislation. There is an instance of an old regulation, called Bengal Regulation 10 of 1804, which permits the Governor‑General to establish martial law and to suspend the ordinary criminal Courts from functioning in times of war or open rebellion against the authority of the Government and authorizes trial by Courts Martial of persons taken in arms in open hostility or in the act of opposing by force of arms the authority of the Government or in the actual commission of any overt act of rebellion and the infliction of death penalty on, and the forfeiture of property of, such persons who are convicted by Courts Martial. The Regula tion is a brief piece of legislation and delegates to the Governor -General considerable authority, but it contains the principle and policy of the legislation and does not conflict with the doctrine against delegated legislation. Amore detailed prior Actor Ordin ance on the lines of this Regulation could have invested the Martial Law Administrator with all the powers that he in fact exercised, and if that could be done antecedently, there can be no objection to the ex post facto validation of what he has done. We cannot, therefore, hold the Indemnity Ordinance to be invalid on the ground of delegated legislation. The proclamation of emer gency under section 102 of the Constitution Act was in force when the Ordinance was passed and its subject‑matter is clearly referable to entry 1 in List I (the defence of the Federation or any part thereof in peace or war; the naval, military and air forces of the Federation and any other armed forces raised and maintained by the Federation; security of Pakistan or any part thereof), to entry 1 List II (the administration of Justice, constitution and organization of all Courts) and to entry 1 in List III (criminal law including all matters included in the, Indian Penal Code) in the Seventh Schedule to the Government of India Act, 1935. The second point, which is similar to the point already noticed, is that section 2 of the Indemnity Ordinance leaves to the Central Government to determine the date on which the martial law would expire and thus delegates to that Government the authority to determine the period of martial law. Acting under this provision, the Central Government notified 13th May as the date on which martial law period ended. The contention raised is that, according to press reports, the Chief Administrator of martial law area having publicly admitted on 23rd March 1953 that the first phase of martial law, which was to restore law and order, was over and that the second phase, the object of which was a constructive one, had begun, the martial law period ipso facto ended on that date but that the Ordinance enables the Central Government to extend the period of martial law beyond that date. The object of martial law, it is urged, is only to suppress disorder and to restore normal conditions, civic life, and that after this object has been achieved, continua tion of the martial law becomes illegal and wholly unjustified and the legislature cannot empower the Central Government to keep martial law in force when necessity for it disappears and thus to keep the constitution in a state of suspension. We see no force in this contention, because the terminus a quo of the martial law period has been defined by the statute itself and the mere fact that the expiration of that period is left to be deter mined by the Central Government and was not determined by the legislature itself, neither amounts to delegated legislation nor to suspension of the constitution. The date of the expiry of martial law could be left to be fixed by the Central Government on precisely the same principle as the date on which the machinery of special Courts under Ordinance II of 1942 was by a provision in that Ordinance to be brought into operation by the Provincial Government, a provision which, following the decisions in The Queen v. Burah (supra), and Charles Russel v. The Queen (supra), was held by the Privy Council in Emperor v. Benoari Lall Sarma (supra), to be valid. The question up to what date disturbed conditions or the consequences following from them should, for the purpose of the Indemnity Ordinance, be held to continue was a matter for investigation which could well be left by the legislature to be determined by the Central Government and no basic principle of legislation was contravened by the provision. And further, Major‑General Muhammad Azam Khan is not to be taken literally when he said that the first phase of martial law was over. He did not say that there was no necessity thereafter for the martial law to continue or that there was no possibility of the recrudescence of disorders. It cannot, therefore, be said that the martial law period in fact or law came to an end on 23rd March, but the legislature permitted the Central Government to take it beyond that date. In the course of arguments the expression "suspension of constitution" was repeatedly used both by Mr. Suhrawardy and Mr. Nazir Ahmad Khan but we confess that we were unable to understand its signification. It is nobody's case that the authority of the Government or the legislature had ceased in the martial law area during the martial law period. In times of civil disorder in any particular area even where the civil authorities become helpless and cease to function, their authority to act, except to the extent that it is controlled by the martial law administrator, does not cease and it cannot at all be said that the sovereignty of the State is temporarily deposed from such area. Suspension of constitutional guarantees, however, is a different matte but in our present constitution there are very few constitutional restrictions on the legislature's power. In an emergency the rights of the legislature to legislate as to person and property of its citizen are supreme and any legislation passed by it touching the freedom of person or possession or enjoyment of property, cannot be objected to on the ground of unconstitutionality. There is, therefore, no question in the present case of the suspension of constitutional guarantees. In any case, the delegation to the Central Government of the power to determine the date on which martial law period was to expire did not amount to a suspension of the Constitution any more than the stepping in of the military to stop disorder and lawlessness. The result, therefore, is that no sufficient reason having been shown against the constitution ality of section 7 of the Indemnity Ordinance and it being admit ted that that Ordinance applies to the present case, the sentence in question has been confirmed by the Ordinance and must, under section 7 of that Ordinance, continue in force until the Central Government itself decides to release the prisoner. The applica tion fails and is, therefore, dismissed. As we have said above, we are not concerned with the policy which led to the confirma tion of these sentences. It is for Government to see whether these sentences, having been passed in abnormal times and by Tribunals which were not Courts, require revision. A. H. Application dismissed.