P L D 1973 Lahore 539 (PLP)

SHAMEFSM HUSSAIN KADRI, J.

‑Okara Flour and General Mills, Okara, had its registered office at Amritsar. The factory, was taken over by the company in 1945. S. A. Rafi petitions; No.1 is one of the shareholders. All other shareholders are Indian Nationals. In 1948 he was appointed as Director Incharge of the Mills. In 1965 Proclamation of Emergency was made by the President of Pakistan on 6th of September 1965 under Article 30 of the late Constitution of Islamic Republic of Pakistan, 1962. The Defence of Pakistan Ordinance was issued the same day and Defence of Pakistan Rules were framed under section 3 of the said Ordinance which were notified on 13th September 1965. The Management of the factory was taken over under the Defence of Pakistan Rules and entrusted to the Chairman, W. P. I. D. C. The petitioner was appointed as Deputy General Manager by noti fication dated 7th October 1965. On 15th March 1966 the Manage ment of the factory was transferred to Q. M. G. Government of Pakistan, Ministry of Defence, Rawalpindi. Again on 15th February 1967, it reverted to the W. P. I. D. C. S. A. Rafi petitioner and the company have challenged the taking over of the administration of the company by this writ petition under Article 98 of the late Constitution of 1962.

2. The main grievances of the petitioners are that the emergency having been lifted on 17th February 1969 by the order of the President the property could not remain enemy property; Ordinance I of 1969 issued under Article 29 of 1962‑Constitution by the President is a colourable legislation; certain measures of the Defence of Pakistan Rules have been saved by this invalid law in any case this Ordinance had lapsed after 180 days by virtue of Article 29(6)(b) of 1962‑Constitution as it was not approved by the Legislature and it not being an existing law could not be saved under Article 280 of the Interim Constitution of Pakistan. Since the last Martial Law has been declared as an act of usurper by the Supreme Court in Miss Asma Jilani v. Government of Punjab and another (P L D 1972 S C 139) the cover given by the Martial Law to Ordinance U of 1969 could not keep it alive. It was further submitted that requirements of rules 181 and 182 of the Defence of Pakistan Rules were not present in the instant case so as to give authority to the respondent to take over the; Mills.

3. On behalf of the Government and the Custodian the following objections were raised to the maintainability of the writ petition, namely, that petitioner No. 2 is an alien enemy having no locus standi to file the writ petition. Petitioner‑No. 1 has no interest and is not an aggrieved party. The beneficiaries are aliens who cannot claim any relief in Pakistan Courts in view of section 83 of the Code of Civil Procedure. The petition suffers from laches, it having been filed on 5th April 1969 and the action having been taken in 1965. No relief has been sought against the vesting order under rule 182 of the Defence of Pakistan Rules, 1965. Petitioner No. 1 has acquiesced to the jurisdiction of the Custodian and the Authority by accepting employment for the Management of the Mills and in any case his share is not affected by the order of taking over of the Mills.

4. Admittedly the petition suffers from laches and can be dismissed on this ground alone. Petitioner No. 2 being an alien enemy, and as the head office of the company is in foreign country, is completely debarred from bringing an action in Pakistan Courts on account of section 83 of the Code of Civil Procedure. Reference is made to M. M. Mansur Ati v. Arodhendu Shekhar Chatterjee (P L D 1969 S C 37). The order of vesting of the Mills in the Custodian whereby it is being sold, has not been challenged by this petition. Challenge has only been thrown to action under rule 181 i.e. taking over of the administration. Much stress was laid on the Tashkent Declaration and it was argued that this being a peace treaty between India and Pakistan the hostilities have come to an end. On the other hand the stand of the Attorney‑General, who was sent for, is that Tashkent Declaration was only an arrangement to normalise relationship between India and Pakistan and it was not a peace treaty. The state of war existed between the countries. A note issued by the Foreign Office of the Government of Pakistan was produced before this Court to this effect, which has been seen and returned to the standing counsel for the Central Government. Paragraph 18 of the Halsbury's Laws of England, Third Edition, Volume 39 steals with war. It is reproduced as under :‑ Existence of a state of war.‑At common law no state of war exists between this country and a foreign State until there has been a formal declaration of war by the Crown or hostilities have been commenced by the authority of the Crown. Similarly a year may be terminated only by the authority of the Crown, and this is usually effected by a treaty of peace and announced to the nation by proclama tion or order in Council. A certificate of the Secretary of State for Foreign Affairs to the effect that the Crown is still at war with a foreign State is conclusive evidence that the state of war is not at an end. During the course of a war with a foreign State all commerce and intercourse between British subjects resident in British territory and the subjects of that State, or with persons residing there, is prohibited except under licence. Judicial notice will be taken of the existence of a state of war between this country and any other, when that is the fact, even after the termination of hostilities. Whatever the case may be we are not in a position to find out as to whether Tashkent Declaration was a peace treaty, as it has not been produced before us. Certificate produced of the Foreign Office shows that there is a state of war between India and Pakistan and this according to Halsbury is a conclusive evidence to the effect that state of war exists between the two countries. In Rex v. Bottrill ((1947) 1 K B 41) it was held :‑ .King alone can make peace with a State with which this country has been at war and thereby bring the state of war to an end, and a certificate of His Majesty's Secretary of State for Foreign Affairs to the effect that His Majesty is still at war with that State is conclusive evidence that the state of war is not at an end, even though it recites facts such as the unconditional surrender of the enemy State, the displacement of its Central Government and the assumption of supreme authority with respect to that state by the Govern ments of His Majesty and his Allies which might be regarded in international law as end to the state of war. In M. M. Mansur Ali's case cited above their Lordships of the Supreme Court held that whether we are at war with India an whether in the present circumstances India is an enemy country in a delicate political question which as a matter of state policy lies in the domain of Executive Government and the Courts need not answer it. The correct procedure, therefore, for the Courts to follow, whenever a question of this nature crops up is to obtain the views of the Government on the question and to follow them.

5. In view of the discussion made above the petition cannot succeed and has to be thrown out. We have already discussed the other questions raised and we must say that there is acquies cence on the part of petitioner No.1, for, he is no doubt serving under the control and management of the Custodian. If he had a genuine cause he should not have accepted this position and should have continued challenging the authority of the Custodian.

6. Before parting with the case we must say a few words about Ordinance I of 1969. Under Article 29 of the late Constitution of 1962 the President was clothed with the authority to promulgate the same and if it has not been approved by the Legislature on account of the promulgation of the Martial Law and dissolution of the Legislature this cannot be declared illegal in view of the cover given by Martial Law and later by Arti cle 281 of the Interim Constitution of Pakistan. Certain acts of usurper which on account of necessity had to be validated, the National Assembly of Pakistan has approved them. The question of necessity which the Courts can go into is quite visible in the instant case, for, it is for the good of the State and its citizens to have kept these laws alive. We would perhaps be constrained to approve the conviction by the Martial Law Court during the reign of usurper because in that case it is quite obvious that normal Courts were functioning and there could not be any necessity of running parallel Martial Law Tribunals, Malik Mir Hassan's case (P L D 1969 Lab. 796) being in the field. Such a validation of the Parliament is a question for which it could be argued with success that there is no necessity of validation of such acts.

7. For the foregoing reasons the petition is dismissed leaving the parties to bear their own costs. S.A.H. Petition dismissed.