P L D 1980 Karachi 113 (PLP)

I. MAHMUD, J.--These are two petitions in the nature of habeas corpus seeking release of Mr. Zulfiqar Ali Bhutto who is said to be presently detained illegally in Central Jail, Rawalpindi. It is admitted that the present contention of the said detenu is in pursuance of a Full Bench Judgment of the Lahore High Court sentencing him to death, which conviction has been upheld by a 4/3 majority of the Supreme Court.

2. The contention in support of these petitions is that for different reasons, the High Court at Lahore was coram non judice and so also the Supreme Court of Pakistan, More particularly, it was argued that, on the assumption that C. M. L. A. Order No. 6/77, was valid, it revived the original Article 195 of the Constitution and, therefore, Mr. Justice Sardar Muhammad Iqbal, the then Chief Justice of the Lahore High Court continued to remain the Chief Justice and that the subsequent assumption of that office by his successors, including the present Chief Justice Mr. Justice Moulvi Mushtaq Husain, was not in accordance with law and, therefore, the Lahore High Court became coram non judice.

3. As regards the Supreme Court, the contention was that C. M. L. A. Order No. 6/77 was void in so far as it removed the amendment brought about in Article 175 by the Constitution (Sixth Amendment) Act, 1976 and, therefore, Mr. Justice Muhammad Yaqub Ali did not cease to be the Chief Justice of Pakistan and that he continues to hold that office. It was, therefore, argued that the present Chief Justice is not the Chief Justice of that Court, making the Supreme Court, coram non judice.

4. We enquired from Mr. Abdul Hafeez Pirzada, learned counsel, as to our jurisdiction to entertain these petitions as admittedly Mr. Zulfiqar Ali Bhutto, is presently detained in Rawalpindi, which is not only outside the territorial jurisdiction of this Court, but also in pursuance of orders made by authorities not functioning within the territorial jurisdiction of this Court. Mr. Pirzada contended that the detenu was removed illegally from the jurisdiction of this Court on 23rd September, 1977 and taken to Lahore. On further enquiry by us, the learned counsel stated that the detenu was detained under M. L. O. 12 when he was removed to Lahore and that detention was illegal. There is no doubt that there is an averment to this effect in the petition that the detenu had been illegally detained at Karachi before his removal to Lahore. But, it is significant that no particulars have been given so much so that the petitions do not even state that he was detained under M. L. O. 12, much less is there any mention in support of a vague assertion that that detention was illegal. A copy of the detention order has also not been filed. At the Bar, it was argued that the said detention was illegal because M. L. O. 12 was void. This argument is not available to counsel inasmuch as majority Judgment of this High Court in Mumiaz Ali Bhutto and Abdul Hafeez Firzada v. Deputy Martial Law Administrator and others C. P. 1203/1978 a Full Bench of this Court has held that the M. L. O. 12 is a valid piece of legislation. Learned counsel placed reliance on the case of Ch. Manzoor Elahi v. Federation of Pakistan (1). But reliance on this case is misconceived, for among other things jurisdiction of this Court would be attracted only if the arrest of the deteau at Karachi was demonstrated to be illegal. Furthermore, in the present case, the alleged illegality of detention under M. L. 0.12 is of academic interest only, as not only that order lapsed by operation of law on 31-3-1978 but since then the detention of Mr. Z. A. Bhutto is in pursuance of an independent and unconnected proceedings taken outside the jurisdiction of this Court.

5. We are further of the view that, in affect, these petitions are directed against the judgment delivered by two Superior Courts and, therefore, any interference by us will, in effect, amount to issuing a Writ against the said Court, which cannot be granted under Sub-Article (5) of Article 199 of the Constitution, which provides that no writ of any kind can be issued against the High Court and the Supreme Court of Pakistan.

6. For the foregoing reasons, we find no force in these petitions. They are accordingly dismissed in limine. Petitions dismissed. (1) P L D 1975 S C 66