P L D 1972 Lahore 382 (PLP)

We are not concerned with the formal commitment of the members to their leaders to support a certain measure, but there is no doubt that all of them wanted the lifting of the Martial Law‑this is what the President respected and, as he put it, "in deference to them" announced its end. And if this was the desire of the chosen representatives of the people, it is difficult for us to accept the mere statement of the learned Advocate- General that the people of Pakistan desired the continuance of Martial Law. The next question is of the so‑called submission of the Courts to the illegal regime. The learned Advocate‑General mentioned the fact that the Judges of the High Court took fresh oaths of office. The oath was of allegiance to Pakistan not to any one man or regime. It was reiteration of doing justice in accordance with law. As to what the law is, has to be determined by the Courts. Therefore, the taking of the oath is no bar to the declaration by the Courts as to the constitutionality and validity of a regime and its acts. It cannot work as estoppel against the Courts, the Constitution or the people who, in Pakistan, are the real sovereign (under the ultimate sovereignty of Allah). To hold otherwise would mean that an act of treason can be condoned on grounds of acquiescence, estoppel or limitation. It is well‑known that the law of estoppel and limitation does not apply to trial of offences (See M. S. Khawaja v. The State (PLD 1965 SC 287). A distinction has to be made between the Judges of the superior Courts joining the usurpation and their continuance in office for the preservation of peace and good Government and the maintenance of law and order and/or for aiding the democratic process of re‑assertion of the people's right to govern themselves. It is not necessary to go into the question whether) the then judiciary joined the so‑called 1958‑Revolution. But it' would be an insult to the judiciary to say that it joined the usurpation of 1969. There are innumerable examples where refusal to submit can be clearly spelled out from the conduct of the Judges of the subordinate and superior Courts. The refusal of the Judges of the superior Courts to submit their declarations to the Chief Martial Law Administrator and instead their insistence on their right to be judged by their own peers; the decision in the case of Mir Hassan by a Full Bench of this Court and subsequent Contempt proceedings despite the President': Order No. 3; and the Contempt proceedings against and conviction of an Army General by a Full Bench of this Court of which one of us was a member, are the major instances. There are others of somewhat less importance. For example within about two months of the imposition of the Martial Law an incident took place which is illustrative of the attitude of the superior judiciary to the Martial Law. It happened with two Judges of this Court (one of whom is now sitting on this Bench) who had not even been confirmed by then. The facts are contained in the Inspection Report of Bahawalpur Division by the same Judge (pages 57‑63). It would not be out of place to quote the relevant portion:‑ "(6) Apart from the general subdued complaint that the local Martial Law Authorities do make enquiries from sub judiciary about the pending cases, we (the Judges of the High Court) have had some similar experience while dealing with a writ petition. An Assistant Sub‑Martial Law Administrator passed a written order of ejectment (to be executed by the police) in a matter which was earlier decided by ordinary Courts several times and was at the relevant time pending in the Court of Rent Controller. In motion hearing, after considering the matter thoroughly with all the possible care and circumspection, we admitted the writ petition to hearing and passed an order directing the police authorities not to obey the order issued by the Martial Law Authority; as, in our view, the order was beyond the scope of jurisdiction and authority of the officer passing the same. We, of course, took note of the possible objection of lack of jurisdiction and passed a detailed order dealing with all, the relevant aspects. It may be noticed that we avoided granting any stay order against the said Martial Law Authority but kept the question open for argument. The stay order having been issued to other respondents only, .the notice in writ petition was ordered to be issued to all the respondents which included the said Martial Law Authority as respondent No.

1. The said Martial Law Authority had directed the S. I. Police to report compliance with his order within seven days. Those seven days were to expire on 21‑5‑69 and we, after having granted the interim stay, fixed that matter for regular hearing for that day. Some time before the actual date, we were sitting in the retiring room during the break and taking tea, when the Additional Registrar sent a message that he wanted to talk to us. My Earned brother told the Orderly that Additional Registrar can wait unless there was some emergency. The reply came that the Additional Registrar said that there was an emergency and at the same time the Additional Registrar himself entered the room begging our pardon for that liberty. He was visibly perturbed and told us that in fact it was some sort of emergency; in that there was a Colonel on the telephone and that he wanted to talk to the Judges with regard to the above matter. We told him that he should tell the Colonel very firmly that the Judges are not used to such a practice in a pending case and that they shall not talk; and that a notice having already been issued to them, they may make their submissions in Court; and further that if they wanted any information about the record, they could inspect the file. Thereafter, though the said Colonel did not approach me nor to my knowledge, my learned colleague, yet it was learnt from an unconfirmed source that the Colonel felt pretty annoyed over the attitude of the High Court. On the evening before the hearing of the case, my learned brother had gone for a walk and 1 was busy reading my next day's file, when my Orderly came and informed me that a. Brigadier wanted to see me. I told him that he should inform: the Brigadier that I did not want to see him; but he immediately replied that the Brigadier knew me personally and that he had come to pay his respects. Though with a lurking doubt that the visit may be in connection with the case, yet being in a fix as to normal human conduct and courtesy, I thought it better to go out and meet the Brigadier. The visitor was sitting fn the drawing room; but before entered the room, I noticed that apart from a big staff car, there was probably one, If not more, staff van. The Brigadier turned out to be an acquaintance. We greeted each other with usual brotherly salutations because I am known to the family. He told me that he was in Bahawalpur and that he had come to call on me. He further told me that when Mr. Justice . . . . . were there, he had come to call on them, also. I expressed my thanks. After a minute or so, he wanted to talk to me about the above‑mentioned case. As soon as he touched the subject, I got stiff and told him that in spite of my greatest regard for the whole family and for the Brigadier himself whom I knew very well as a war hero also, I would not tolerate the case being discussed outside the Court. I further informed him that if the Army people think that the Army discipline is supreme and is to be maintained at all costs, we (the Judges of the High Court) also very jealously maintain our own discipline and furthermore additionally we are under an oath and I shall not break that discipline and oath come what may. I also made it clear to him that if in spite of then position explained by me, he insisted on talking the matter, I could not physically stop him, though I might walk out during the process. But he should rest assured that I would immediately inform my Chief Justice and that though I might not be able to sit in the Bench next morning due to this forced incapacity, yet there was every chance of another Bench coming from Lahore to hear the case and that might create an embarrassing position for the High Court as well as for the Martial Law Authorities which, at all costs, I as a Judge of the High Court wanted to avoid. I further informed him that they should have appreciated the fact, that we had ordered that the news about our order 4n the writ petition should not be published in the newspapers and we did not want to give any publicity to the matter. All this I cannot say definitely but happened hurriedly in a moment. The Brigadier told me in somewhat like this language: Alright dear brother, if you are so particular about your discipline, I will not talk it; and then we relaxed and talked about some other things but with reservations. The Brigadier again suddenly approached the subject by saying that: he had come to apologise to us, the Judges; that his officer had committed a mistake; that the order was going to be (I am not sure whether he said `has been') cancelled; and that the officer concerned will be proceeded against. After hearing the first sentence this time, I must confess, I did not stop him from saying these things. He then asked me to take him to my senior colleague and that he wanted to tender his apologies formally to both of us . . . . . . In sufficiently strong and clear words, he expressed that the Martial Law Authorities are certain about their attitude towards the judiciary; that they have the highest regard for it; and that there was absolutely no intention to interfere with it, whether at higher or lower levels. (7) Next day when the case came up, we found that the counsel appearing for the Martial Law Authorities had instructions to state that the orders had been withdrawn. In our next sitting at D. B., another writ petition was filed with respect to another alleged similar order but allegedly passed verbally by Martial Law Authorities. We granted stay and issued notice. ." With regard to the subordinate judiciary, the following instance at pp. 55‑56 of the same Report is illustrative of their attitude:‑ "(5) Both the Magistrates without expressly saying so, probably due to fear of reprisal, obliquely hinted that the Martial Law Authorities do not treat them with reasonable respect. On the contrary, they are some times dealt with like subordinates. I told them that if it is ever a case of Interference in their judicial functions, they should report the matter to the High Court, but if the matter is in their administrative capacity, they should report the matter to the District Magistrate. On this, Mr. . . . . informed me that occasionally the Martial Law Authorities do make enquiries about their judicial work, though only verbally. For example, he told me that a day before, I.e., on 27‑5‑1969, he passed an order granting bail in a case, as a Special Judge . On the same night, a Major asked him about the reasons for the grant of bail and also that he 'had done it so soon', though the case, according to that authority, was an important one. The A. D. M. replied that this is a judicial matter and that there the matter stands and ends, and that he would not like to talk any more about the case. Till the time that I left his Court (1 p m.) nobody had made any further enquiries. I have gained an impression during my tour of this Division as Inspecting Judge and also while sitting in D. B. at Bahawalpur Circuit, that the Martial Law Authorities at lower level, say Lt: Colonel and below, have not properly comprehended the understanding reached between the High Court and the higher Martial Law Authorities about the scope of dealings, if any, between those officers and the subordinate judiciary." Mere assertion on the part of somebody apart, it is not possible to hold that the judiciary in this country joined the usurpation. The so‑called acceptance of some of the measures, if properly analysed, was only in the larger interest of the country; in the face of a constant danger from an enemy, for the preservation of peace and good Government, the maintenance of law and order, and peacefully aiding of the democratic process of re‑assertion of the peoples' will. Thus the argument based on the conduct of the judiciary or other institutions of the State is misconceived and cannot be accepted, nor can this argument save and validate the illegal acts of the usurper which were intended to establish him in unlawful usurpation. This brings us to the subject of "State necessity". The following passage from Grotius' De Jure Belli ac Pacis 1.4.15 (Kelsy's tr.) will help understanding the principle:‑ "We have spoken of him who possesses, or has possessed, the right of governing. It remains to speak of the usurper of power, not after he has acquired a right through long possession or contract, but while the basis of possession remains unlawful. Now while such a usurper is in possession, the acts of Government which he performs may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that the one to whom the sovereignty actually belongs, whether people, or king, or senate, would prefer that measures promulgated by him should meanwhile have the force of law (interim rata esse quae impert), fn order to avoid the utter confusion which would result from the subversion of laws and suppression of the Courts .. In the case of measures promulgated by the usurper which are not so essential, and which have as their purpose to establish him in his unlawful possession, obedience is not to be rendered unless disobedience would involve grave danger." This principle was followed in the case of Madzimbamute by the High Court in Southern Rhodesia. The argument of condonation of the acts of the usurper on the basis of "public policy" and "the law of nature" is not necessary to consider at this stage. The doctrine of necessity, if applied, has to be considered in the context of the necessity of the act impugned. In this case it is to be seen whether the trial of the detenus by a Military Court and the so‑called bar to the jurisdiction of this Court (to consider this question) are based on State necessity. It is not denied that the President's Order No. 3, which is said to have taken away the jurisdiction, was promulgated to neutralize the effect of the decision of a Full Bench of this Court in Mir Hassan's case. On the face of it, this was an attempt by the usurper "to establish him in his unlawful possession". Therefore, on the principle of State necessity it cannot be upheld as valid law. Moreover, the question of State necessity cannot be separated from the concept of "open Court". When the Courts are open and functioning effectively under the normal law, there is no justification for establishing special Military Courts for trial of civilians. The American case of Duncal v. Kahanamoku ((1945) 327 U S 304), is a vivid example illustrative of the rule of "open Court". At pages 330‑333 there is a detailed discussion of all the possible objections to this theory. It was held that power to declare Martial Law does not include the power to supplant civilian laws by military orders and to supplant Courts by military tribunals, where conditions are not such as to prevent the enforce ment of the laws by the Courts. No one can deny the fact that the orders passed by the Courts in Pakistan have always (i.e., at all relevant times) been accepted by the people and other State organs. There was absolutely no justification over to 'supplant civilian laws and Courts by military orders and Courts'. The charge against the detenus in this case is of "objectionable writings". The alleged acts are also covered by some definitions of offences in Ordinary law. The Courts are open and functioning and can try the detenus for the alleged offences. The circumstances earlier noted, particularly the hurry with which the se ‑fences have been pronounced, are at this stage not enough to convince us that the trial of the detenus by the Military Court resulting in their convictions was a 'State necessity'. Thus the principle of State necessity cannot at all be pressed in service so as to oust the jurisdiction of this Court under the 1962‑Constitution and the law. The learned Advocate‑General obliquely hinted that, if then superior judiciary starts striking down laws and acts of the usurper it is likely to create chaos and confusion which it is the purpose and aim of every patriot at present juncture of our history to avoid. As the argument appeared to have contained an innuendo, therefore he was told that patriotism cannot be monopolized. It is a commodity which gets slippery on arrogance but flowers in humility. It needs no reiteration that Judges are not an iota less patriots than anyone else. The only difference is that they are, in addition, bound by and work under the dictates and compulsion of rule of law. They are bound by their oath to observe the law: but while doing so they are not oblivious of the necessity of preserving the State, the destruction of which will be the end of the principles and oaths, they live and cherish to serve and honour. It is in that context only that the questions of implied mandate of the people and State necessity are being considered with utmost care. Otherwise, we could declare the pure legal position and leave the confusion to be taken care of by those who are bound by their own mandate given to them by the people in the elections, to save the State and the ideology, by enacting good laws and establishing workable sound strong democratic institutions. It is in performance of their own obligations that Courts have started examining the actions of the usurper brought before them in proper proceedings in each case whether it was in aid of good Government or was to perpetuate will have to be struck down. It is necessary to make a brief reference here to the Reforms' introduced through Martial Law Regulations‑whether they can be upheld on the principle of State necessity. Subject to further arguments., this question, a tentative opinion, at least, can be expressed alt this stage that it might be possible to construe most of these Reforms as being in obedience to the mandates contained in the Supra Constitutional Instrument, namely, the objective Resolution. For example, the mandate of `social justice', of course as enunciated by Islam, can cover many of those Reforms if that is so, they can be upheld not only on the basis of State necessity and implied mandate but also on the basis of the mandate contained in the Objectives Resolution. In the light of the above discussion, it can be held that there is no impediment legal or otherwise in declaring; that the assumption of political power and the so‑called abrogation of the Constitution by General Yahya Khan and consequential imposition of Martial Law by him. In 1969 and it is continuance till today is devoid of any constitutional and legal validity. All acts done in pursuance or under colour thereof, unless they are, condonable as being in aid of good Government andor in aid of re‑assertion and re‑capture of the power by the real sovereign, i.e., the people, would, unless shown otherwise, be invalid. The law promulgated in any form by the usurper to oust jurisdiction of the Courts are prima facie void. Therefore, the Court has the jurisdiction unless shown otherwise, to entertain and decide the writ petitions. That being so, this Court has also the jurisdiction to grant interim relief. There is no doubt about the practice of this Court and the proposition that if the Courts comes to a prima facie conclusion that it has tile jurisdiction then, while entertaining a writ petition, it can grant interim relief. The learned Advocate‑General also referred to an order of interim relief passed by a Full Bench of this Court in the case of Mukhtar Rona. He relied on the order passed by the Supreme Court in the game matter suspending the order of the High Court on the ground that the question of jurisdiction was left undetermined. The instant case is distinguishable. After hearing the arguments on the question of jurisdiction, a prima facie conclusion has been reached that this Court has the jurisdiction and sufficient reasons, even though not exhaustive have been anted in support of this view. It was also mentioned that after the arguments in the case of Asma Jillani their Lordships of the Supreme Court did not grant any interim relief. In that behalf, no order has been placed before us. Moreover, the cages before their Lordships were of preventive detention while the question raised before as is of the validity of trials, convictions and imposition of sentences of rigorous imprisonment and fine. Serious allegations of mala fides have been made. We cannot but our eyes to these assertions particularly when they have not so far been rebutted. The peculiar circumstances leading up to the hurried convictions have put us in serious doubts about the observance of even the most rudimentary norms of criminal justice. This Court usually, In cases of short sentence of a year or so and/or fine, suspends the same if the challenge to It is based on bias or lack of jurisdiction in the tribunal concerned. Mr. M. Anwar has stated that for the time being he does not press for bail. Mr. Khalid Ranjha has, however, urged for release of the detenus on bail. For the alleged acts of so‑called "objectionable writings", the detenus could have been arrested and tried under the ordinary law. In the circumstances of the case, therefore, the position adopted by Mr. M. Anwar appears to be more reasonable. Accordingly, we suspend the sentences of the detenus in so far as the rigorous nature of imprisonment and realisation; of fine is concerned, but there is no justification for bail at this stage. The question whether the detenus should seek bail under the ordinary law from the Courts which can lawfully fry them for the alleged acts, will be considered at the final hearing. ATAULLAH SAJJAD, J.‑The facts which led to the passing of the majority order have been given in detail in the order of my brother Muhammad Afzal Zullah, J. I have had also she advantage of perusing the order of my brother Nasim Hassan Shah, J. I would, however, like to add a few lines of my own.

2. On 10th of April 1972, while refraining from passing a positive order staying proceedings, the Bench passed a unanimous order expressing a hope and desire that the petitioners before us would not be treated differently from Mukhtar Rana in whose case the Supreme Court had passed an order staying final pro nouncement of orders by the Military Court on the basis of an undertaking given by the learned Advocate‑General. We then adjourned the case to 12th Instant for appearance of the Attorney- General. On that date request was made on behalf of the Attorney‑General by Maulvi Ihsanul Haq, the learned Standing Counsel for the Central Government, to adjourn the case to a date after 18th. In reply to our question as to what is the position of the State regarding stay of proceedings, we were told that the learned Attorney‑General shared our hope that the order passed by this Court on 10th of April shall be honoured. This was one of the reasons for which the majority of the Bench did not pass a positive stay order. The hope shared by the learned Attorney‑General was, however, frustrated when the Summary Military Court announced sentences on detenus by adopting the unusual procedure of accelerating the dates of hearing in relation to some of them.

3. During the arguments in this case regarding the stay matter, we were told by the learned Advocate‑General that the order of the Supreme Court was based on an assurance given by him and cannot be termed as a direction by that Court. The contention is only partly correct because the statement made by the learned Advocate‑General form the part of the order of the Supreme Court and, in any case, no concession by a law officer or an Advocate can confer jurisdiction on the Supreme Court unless their Lordships found that they could legitimately pass a stay order on the basis of such a concession.

4. The main attack on the legality of the proceedings against the detenus in this case was on the ground that the transfer of power by Field Marshal Muhammad Ayub Khan to General Muhammad Yahya was in flagrant violation of the constitutional provision which said that in case the President was incapacitated to perform his duties, he had to hand over the power to the Speaker of the National Assembly. It was, there fore, said that all Martial Law Regulations promulgated by Agha Muhammad Yahya and orders issued by his subordinates were devoid of any legal force and continuance was not in accordance with law.

5. Mr. M. B. Zaman, the learned Advocate‑General was not in a position to deny that the transfer of power from Field Marshal Muhammad Ayub Khan to General Muhammad Yahya was unconstitutional but he said that interference by this Court, to quote his own words would "create chaotic conditions". When questioned as to why it should be considered that the stay of proceedings in a criminal case of ordinary nature is likely to, create chaotic conditions he was not able to give any satisfactory answer. After having practically conceded that the act of Field Marshal Muhammad Ayub was un constitutional, he could only depend upon the doctrine of one necessity, to sustain the action against the detenus.

6. The jurists have always drawn a distinction between a Martial Law imposed by a conquering and foreign Army and a Martial Law which is necessitated on account of internal insurrec tion, civil war or an enemy invasion. In the latter events the Army of the country steps into save the integrity of the country and to restore law and order where civil power has failed. The Courts in civilised countries have always tried to contain the advancement of the rule of the Army in walks of life which clearly pertain to civilians and where they can function properly. The doctrine that the Martial Law is the will of the Commander no longer applies to a country where its own Army has been: called upon to quell disturbances or to fight the enemy. In the book entitled "Cases in Constitutional Law" by D. L. Kair F. R. Lawson (Fifth Edition) we find the following observation at page 224:‑ "It is unsafe to infer that because International Law allows, such a power to a Military Commander, municipal law will in any circumstances permit the exercise of corresponding powers by military authorities within the realm. Acts done to foreigners outside the realm may be justified as acts of State, but that defence can never avail to excuse unlawful acts done by a. military Officer within the realm." The foundation for the present Martial Law was laid in this country by the departing speech of Field‑Marshal Muhammad Ayub Khan. Whatever the legal value of this speech, the limited purpose for which he asked the Army to take over was to perform "their constitutional responsibility" to defend they country and to save it from internal disorder. In the proclamation dated '15th of March 1969, imposing Martial Law in the country all Courts and tribunals were to continue to exercise their powers and jurisdiction which they were exercising before the abrogation of the Constitution, although a clear distinction was drawn between the jurisdiction of the Military Courts and those of the ordinary Courts. The Judges of the High Courts and the Supreme Court were to continue as before. According to para. 3 of the Provisional Constitution Order, promulgated on 4th of April 1969, the Chief Martial Law Administrator also became the president of the country. The State of Pakistan was to be governed as nearly as may be in accordance with the Constitution of 1962, but subject to any Regulation or order made from time to time by the Chief Martial Law Administrator. The jurisdiction of the High Court and the Supreme Court was kept intact and it is, therefore, very clear that the Martial Law had come into being not for denuding the superior Courts of the country of their powers but it was its aim to affirm their continuance. Under the above order, para. 1 of the Fundamental Rights was kept intact. Similarly Article 2 which declares that it shall be the inalienable right of a citizen to enjoy the protection of law and to be treated only in accordance with law has not been repealed or modified by any Martial Law Regulation. We have, therefore, to read the Martial Law Regulations in the light of Article 2 and para. 1 of the Fundamental Rights. I, therefore, feel that if any Martial Law Regulation is enacted in violation of the above two provisions of the Constitution, this Court shall have the right to examine its constitutionality. After all, the avowed object of the Martial Law was to perform its constitutional duty of restoring order in the country and the performance of this constitutional duty does not entail the enhancement of un-constitutional laws destructive of the powers of the superior Courts of the country. A Full Bench of this Court defined the limitations of the present Martial Law in Mir Hassan's case (P L D 1969 Lah. 786). It was observed by Mushtaq Hussain, J. at page 808 of the report as follows:‑ "Martial Law was imposed, therefore, with the declared purpose of "restoring sanity", "restoring and saving the country from internal disorder and chaos" and to "ensure that the administration resumes its normal functions to the satisfaction of the people". There is not one word either In, the letter of the former President to the Commander‑in‑Chief, or in the speech of the Chief Martial Law Administrator, or even in the proclamation of Martial Law to suggest that the existing machinery for dispensing justice was found wanting or that it was to be subject to curbs or that a state of affairs was to be brought about in which the will of the Martial Law Authorities, and even the Chief Martial Law Administrator himself are bound by the Proclamation, Regulations arid orders as any other citizen in the country. No one including the Chief Martial Law Administrator, can transcend or deviate from the sole purpose of restoring law and order and democracy and it needs no gainsaying that curbing the jurisdiction of the established Judiciary is not a step in that direction and ft is for this reason that the Chief Martial Law Administrator never made any secret of the fact "the ordinary Courts including the High Court shall exercise their jurisdiction." This case still holds the field and only answer given to this by the learned Advocate‑General was that President's Order No. 3 set this judgment at naught.

7. The petitioners before us ask for a writ of habeas corpus. In America, the writ of habeas corpus was suspended during the civil War but apart from that extreme situation, the writ of habeas corpus was always available to challenge the military tribunals on the basis of want of jurisdiction.

8. Apart from raising the question of the vires of Martial Law Regulations 16‑A and 89, under which detenus have been convicted, it was argued before us that the subject‑matter of the writings on the basis of which they had been prosecuted fell within the ambit of ordinary law and the right of Martial Law Tribunals does not extend to the trial of offences committed under the ordinary law. This contention derives force from Milligan's case (4 Wall. 2). He was sentenced to death by a Military Commission for conspiring against the United States and committing certain other offences. The punishment for such offences was provided in the ordinary law. The State of Indiana to which Milligan belonged was a theatre of Military operations but the civil Courts were open and functioning. It was held that so long as they were open, Martial Law could not be used to suspend the civil rights of the citizens particularly their right to open trial by jury. A citizen can only be tried by a Martial Law Tribunal for commission of offences falling within the ambit of ordinary law, only if the civil Courts are factually closed and civil administration has been deposed. The case of Milligan still holds the field.

9. The Martial Law came into being in this country with the professed object of preserving order and freedom of the citizens and it is not open to it to take steps destructive of that subject. Any trial of a citizen by a Military Tribunal should be relatable to the maintenance and discipline of the Armed Forces and other matters connected therewith. It is open to great question whether a Commander‑in‑Chief can of his own will, declare a state of Martial Law in the country and then unilaterally make laws destructive of established institutions specially in superior judiciary while the civil Courts are function ing. In the book entitled "The Rights of the People" by William O. Douglas, Associate Justice, U. S. Supreme Court, it is observed as under at page 33:‑ "But it is now established that the final voice of authority in determining the lawfulness of military actions is the judiciary, not the military, nor the executive that authorizes the military to act, nor the legislative branch that sanctions Martial Law." The judiciary cannot be a silent spectator of the Infringe ment of the rights of citizens and curtailment of their own powers. It is of course their duty to apply the law of necessity where the situation so demands. In Madzimbamuto's case (1968 All E R 561), Lord Pearce observed that the actions of a usurper Government may be recognised with certain limitations, namely:‑ (a) so far as they are directed to and reasonably required for orderly running of the State; (b) so far as they do not impair the rights of citizen under the law, and, (c) so far as they are not intended to do and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful sovereign which in our country means the people of Pakistan."

10. The learned Advocate‑General said that the Presidential Order No. 3 was a complete bar to the jurisdiction of this Court, and it had been enforced by the President to his dual capacity as President and Chief Martial Law Administ rator. The heading of this order negatives this assertion. The mention of the authority of the Chief Martial Law Administrator appears to be only descriptive. Under the Constitution in the absence of a Legislature, the President has the Ordinance‑making powers but he cannot by a Presidential Order usurp the functions of the superior Courts to administer and interpret the laws of the country and take upon himself to do so in derogation of the Inalienable rights of the superior Courts.

11. The vires of the laws under which the detenu have been convicted are seriously under question. In fact the very source of these laws is attacked as illegal. The hustling haste in which the date was accelerated and sentences were pronounced on the detenus, clearly indicate the departure from accepted norms of administration of justice even by a Summary Military Court. In al petition for habeas corpus the custody of the prisoner is under the control and direction of the Court. Where lack of jurisdiction is alleged in a criminal Court and the Court finds force in the"' submission, it can go to the extent of even suspending the sentence. NASIM HASAN SHAH, J.‑It is, inter alias cont9nded that the transfer of power by Field Marshal Mohammed Ayub Khan to General (Retired) Agha Muhammad Yahya Khan on 25th March 1969, was in violation of the provisions of Article 16 of the Constitution of the Islamic Republic of Pakistan, 1962, and that, therefore, General (Retired) Muhammad Yahya Khan was holding office as Head of the State not under any legal authority but merely as a usurper. The source of power assumed by him being unconstitutional, the legislative and administrative measures are of no legal validity. Martial Law Regulations 16‑A and 89, under which the detenus have been proceeded against, not being valid pieces of legislation, the convictions and sentences recorded are, therefore, nullities at law. It is also submitted that to case the contention that Martial Law Regulations 16‑A and 89 were not competently promulgated by General (Retired) Muhammad Yahya Khan be accepted as correct, the bar contained in the Jurisdiction of Courts (Removal of Doubts) Order, 1969, to the entertainment of this petition by this Court, would not apply.

2. It is admitted that the acceptance of the above contentions would result in complete chaos and confusion. In this context, it is suggested that in order to avoid chaos and vacuum in the law, the Courts can accept as valid certain acts of the authorities who have been effectively in control of the affairs of the country, provided that the Court is satisfied that‑ (a) the act that is complained of, whether administrative or legislative was directed to and reasonably required for the orderly running of the country; (b) the complained of act has not affected the just rights of the citizens, to which they were entitled under the legal and constitutional instruments previously in force; and (c) there is no consideration of Public Policy which precludes the Courts from upholding the complained of act. The submission is that the provisions of Martial Law Regulations 16‑A and 89 do not fall within the legal and administrative measures which should be accepted as valid by this Court, keeping in view the above basic principles on which acts passed by an illegal authority can be justified on the ground of necessity.

3. The contentions raised above, prima facie, have force and if ultimately upheld would result in rendering the convictions and sentences passed against the petitioners, by the Summary Military Court, to be without any lawful authority and in such circumstances this Court would have the jurisdiction, under Art. 98 of the 1962‑Constitution to give relief to the petitioners.

4. Accordingly, by the short order dated 17‑4‑72, we suspended the sentences of the detenus so far as the rigorous nature of the imprisonment and realisation of fine was concerned.

5. The above are my reasons in support of the said order. K. B. A. Petition accepted.