P L D 1970 Lahore 741 (PLP)

"A general and recognised rule of law is that the `jurisdiction of superior Courts is not taken away except by express words or necessary implication and that such jurisdiction cannot be excluded unless there is clear language in the statute which is said to have that effect.' It is, therefore, not open to any one to argue that such jurisdiction can be affected, as if it were by a side wind, by a statute containing no express words to that effect in it. Unless, therefore, it could be shown that a Martial Law Regulation exists which deprives the ordinary Courts of jurisdiction to try offences under the ordinary law, such jurisdiction would exist in its full force." In the same judgment Bashir‑ud Din Ahmad, J. and myself said:- "There is nothing in the Proclamation or the Provisional Constitution Order or the Martial Law Regulations which bars the superior Courts of the country from interpreting the Martial Law Regulations. It is inherent jurisdiction of the superior Courts of the country to interpret law. If an order is passed by a Martial Law Authority or a Military Court which is in excess of or without jurisdiction its legal position is open for examination by the High Court or the Supreme Court, though these Courts would not and could not interfere if the order in question was one with jurisdiction and had the sanction of the Provisional Constitution Order behind it . . . . . . . . . . . the promulgation of Martial Law Regulation No. 42 had not in any manner whittled down the power or curbed the jurisdiction of the High Court, as the Provisional Constitution Order cannot be subjected to Martial Law Regulations or Orders, and the jurisdiction of the superior Courts of the country had been recognized by Article 6 of the Provisional Constitution Order, which cannot be cut down by any Martial Law Regulation or Order." After the announcement of judgment in case Malik Mir Hassan and ,another. v. The State President's Order No. 3 of 1969, Jurisdiction of Courts (Removal of Doubts) Order, 1969; was published in the Gazette of Pakistan. Articles 2, 3 and 4 of which read:- "

2. This Order shall have effect notwithstanding anything contained in the Provisional Constitution Order, or any Martial Law Regulation or any other law for the time being in force. 3. (1) No Court, tribunal or other authority, including the Supreme Court and a High Court, shall‑ (a) receive or entertain any complaint, petition, application or other representation whatsoever against, or in relation to the exercise of any power or jurisdiction by, any Special Military Court or Summary Military Court, or any Martial Law Authority or any person exercising powers of jurisdiction derived from Martial Law Authority; (b) call or permit to be called in question in any manner whatsoever any finding, sentence, order, proceeding or other action of, by or before a Special Military Court or a Summary Military Court or any Martial Law Authority or any person exercising powers or jurisdiction derived from a Martial Law Authority; (c) issue or make any writ, order, notice or other process whatsoever to or against, or in relation to the exercise of any power or jurisdiction by, a Special Military Court or a Summary Military Court, or any Martial Law Authority or any person exercising powers or jurisdiction derived from a Martial Law Authority. (2) Any decision given, writ, order, notice or issued or made, or thing done in contravention of clause (1) shall be of no effect. (3) If any question arises as to the correctness, legality or propriety of the exercise of any powers or jurisdiction by a special Military Court or a Summary Military Court or a Martial Law Authority or any person deriving powers from‑ a Martial Law Authority, it shall be referred to the Chief Martial Law Administrator whose decision thereon shall be final. Explanation.

‑`Martial Law Authority' means the Chief Martial Law Administrator and includes a Deputy Chief Martial Law Administrator, a Zonal Martial Law Administrator, a Sub‑Administrator of Martial Law or any person designated :as such by any of them.

4. If any question arises as to the interpretation of any Martial Law Regulation or a Martial Law Order, it shall be referred to the Martial Law Authority issuing the same for decision and the decision of such Martial Law Authority shall be final and shall not be questioned in any Court, Tribunal or other authority, including the Supreme Court and a High Court."

7. We know that the President's Order is an emergency piece of legislation but it is well settled that enactment of this character should be interpreted as far as possible in conformity with the fundamental canon of interpretation of a statute in such a manner as to promote the object or the main purpose of the enactment. It must be remembered that the function of a Court is to interpret the language of a statute and it is not the province of a Court to scan its wisdom or policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words. The words of a statute should never be added or subscribed without utmost necessity A and the general rule is not to import into statute words which are not to be there. Whatever may have ‑been the wisdom in enacting the President's Order No. 3 of 1969, it is not for this Court to make surmises when the language is plain. The Court has to administer a statute as it is.

8. I agree with the learned Advocate‑General that the President's Order No. 3 of 1969, is a declaratory statute. The word 'declaratory' has been defined in the Dictionary of English Law by Earl Jowitt, 1959 Edition, as under:- "A declaratory statute is one which declares or formally states what the existing law is on a given subject, so as to remove any doubts which may have been raised. The Bill of Rights, 1688, was such a statute." In Craies on Statute Law, 6th Edition by S. G. G. Edgar 'declaratory act' has been defined:- "An Act is said by Blackstone to be declaratory `where the old custom of the realm is almost fallen into disuse or become disputable, in which case Parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts; and difficulties, to declare what the law is, and ever hath been'. For modern purposes a declaratory Act may be defined as `an Act to remove doubts existing as to the common law, or the meaning or effect of any Statute. Such Acts are usually held to be retrospective."

9. On scanning the preamble of President's Order No. 3 of 1969, and its Articles 2, 3 and 4, the intention of the law‑giver is very clear. After the promulgation of this declaratory statute there is no doubt left in my mind that the Martial Law authorities are the sole Judges of both law and facts of the matters before them. I dare say that though Martial Law authorities themselves n are the creatures of statute, even if, they do not act within the well defined area of their authority or act in total absence or excess of jurisdiction, this Court cannot review their actions. It was recognised concept that the superior Courts of the country have inherent jurisdiction to interpret the law, but unfortunately this power has been taken away by this declaratory statute.

10. I am afraid I cannot agree with the learned counsel for the petitioner that Article 2 of the President's Order No. 3 of 1969, is ultra vires to Article 6 of the Provisional Constitution Order, as Article 8 thereof, empowers the President to make constitutional provisions, as he may deem fit for the administra tion of the affairs of the State. I am conscious of the fact that ii is the sacred duty of this Court to protect the lives and liberties of the citizens of the State and to see that no one suffers loss of life or liberty save under the laws of the country, but when the law‑giver found that a situation has arisen in the country in which the civil administration could not effectively function and whereas in the interest of the national security, he thought to promulgate Martial Law Regulations and a separate code to regulate and run the martial law administration, to tire exclusion of all other rules of law, the superior Courts have to act within the area allocated to them. I may with advantage refer to Rex v. Allen ((1921) 2 I R 241), where Molony, C. J., delivered the unanimous judgment of the Court as under:- "it is the sacred duty of this Court to protect the lives and liberties of all His Majesty's subject, and to see that no one suffers loss of life or liberty save under the laws of the country ; but when subjects of the King rise in armed insurrection and the conflict is still raging, it is no less our duty not to interfere with the officers of the Crown in taking such steps as they deem necessary to quell the insurrection, and to restore peace and order and the authority of the law."

11. On the merits of this case, I have said enough, and the investigating officer stated before me that he wanted to re investigate the case, Obviously, this case is one which is covered by the dictum of their Lordships of the Privy Council in King Emperor v. Kh. Nazir Ahmad and the Supreme Court of Pakistan in State v. Nawab Gul. As the matter is within the domain of the Martial Law Authorities, the proper course for the petitioner is to make representations to the Zonal Martial Law Administrator or the Chief Martial Law Administrator. With these observations, the petition is rejected. A. E./S. A. H. Petition rejected.