1992 PLP 1496 (SCMR)

SHAFIUR RAHMAN J.

The petitioner seeks review of our judgment reported as Fauji Foundation and another v. Shamim-ur-Rahman P L D 1983 SC 457.

2. Mr. S.M. Zafar, Advocate, the learned counsel for the petitioner` accepts for the purposes of the Review Petition that as held in the impugned judgment of this Court what was promulgated by the President and the Chief Martial Law Administrator on 20th of April, 1972 and published in the Gazette of Pakistan, Extraordinary, on 22nd of April, 1972 was in fact Presidential Order. This is notwithstanding the fact that while arguing the main appeals, the position taken up by the petitioner throughout was that it was a mere notification subordinate and pursuant to power conferred under paragraph 2 of the Martial Law Regulation No.103. As a Presidential Order it could not go beyond and be inconsistent with the Martial Law Regulation No.103. For this proposition, reliance has been placed on Muhammad Afzal v. The Commissioner, Lahore Division and the Estate Officer, Lahore Improvement Trust (P L D 1963 SC 401) at p.410 and Muhammad Ayub Khuhro v Pakistan through the Ministry of Interior, Government of Pakistan and 2 others P L D 1960 SC 237 at p.

247. The Presidential Order No.22 of 1972 in many material respects alters and goes beyond Martial Law Regulation No.103.

3. Another contention of the learned counsel for the petitioner is that the Interim Constitution, as finally authenticated, was passed by the Assembly on 17th of April, 1972 when the Presidential Order No.22/72 had not come into existence. This fact that the Interim Constitution had been approved by the Assembly on 17th of April is borne out by the certificate appended by the Speaker of the Assembly in the officially published documents and by the proceedings of the National Assembly which concluded on the 17th of April, 1972 the assembly adjourning sine die to meet in August, 1972. This is also, borne out by, the judgment of this Court at page

536. On this factual view of the matter, the observations made by the High Court in judgment in Shamim-ur Rehman v. Government of Pakistan and others P L D 1980 Kar. 345 at p.356 would appear to be not quite correct. Something which was not in existence i.e. Presidential Order No.22/72 could not be validated at all. If it was intended to validate a future low, not yet in existence, then the language would have been different from what was adopted, e.g. as has been used in Article 270-A of the Constitution of 1973. Neither the validation, nor the repeal of it will take place on the promulgation of the Interim Constitution. In the absence of validation and repeal it can be challenged in Court as a continuing law and cannot be treated as a past and closed matter.

4. The doctrine of supremacy of Parliament, the immunity of legislative instruments from attack on grounds of motives and lack of bona fides is available only where each organ of the State works healthily as a fully representative democratic institution. If the legislature is consecrated in one man who does not represent and is not accountable, then such legislative immunity does not extend to him nor can it be extended to him on any such principle as attaches to a full blooming and functioning legislature.

5. Finally it was contended that if the Presidential Order No.22/72 is tested by reference to the Constitutional requirements, it being existing law, it will fail on numerous points. Firstly, it does not deal with the petitioner in accordance with law as required under Article 4 of the Constitution inasmuch as this law is directed towards one individual. As existing law it could not be treated to be a law of the appropriate legislature because the subject-matter of the law namely, acquisition of property was under the Constitution a provincial subject. The law determines the rights of the parties which is function of a Court and not of the legislature. Reliance has been placed on the decision of the Peshawar High Court in Nawabzada Muhammad Umar Khan (represented by. his legal heirs) and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others P L D 1982 Pesh. 1 and another case from Karachi.

6. It is also contended that Islam. abhors the compulsory acquisition of property of another and on no principle could such a law be upheld.

7. The learned counsel for the petitioner has also pointed out that there are certain factual inaccuracies in the judgment, particularly as many facts and record was produced before this Court which had not been produced and received attention before the High Court. In this respect it was pointed out that the Company at the time it was taken over and set up had value of Rs.8,00,00,000 (rupees eight crores) while the investment of the D.W.R. was less than a crore. There should not have been any feeling of apprehension with regard to those funds, nor was such an apprehension justified, according to the auditors. For the purposes of maintaining this review petition, reliance bas been placed on Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and another P L D 1962 SC 335 which lays down that if important Constitutional provisions have not been taken note of, kept in view or observed in deciding a case, then a review has to be undertaken as a matter of duty under the oath taken by the Judges.

8. As regards the first contention, two material facts must be kept in view. The first is that Martial Law Regulation 103 suffered from no such ambivalence as was sought to be attributed to Presidential Order No.22 of 1972. The former was a Martial Law Regulation, pure and simple, promulgated by the Chief Martial Law Administrator and was taken to be legislative instrument. The second is that it conferred, recognized and reserved a power for exercise at a future date. The authority by which it was to be exercised was designated and identified as President and Chief Martial Law Administrator. The authority lesignating and the authority designated were till then co‑equal. The power recognized, conferred and reserved by Martial Law Regulation 103 for future exercise was possessed in fact as much by the designating authority as by the designated authority.

9. These two aspects that Martial Law Regulation 103 and Presidential Order 22 of 1972 were legislative instruments and notwithstanding their description maintained, their unity of character is established from the following observations/findings in the judgment:‑ "It is clear from paras. 2 and 4 of the impugned legislative instrument (M.L.R.103) that the Chief Martial Law Administrator appropriated to himself the power to determine the terms and conditions of the transfer and the power to provide for the removal of difficulties arising out of or m connection with the dissolution of the Company or ineffectively carrying out the purposes of this Regulation. In effect, therefore, it was a reservation of legislative power unto himself and not a delegation of power for a law‑giver cannot delegate to himself what he can do without it .

Such is not the case here and as the power was reserved it can only be taken in the sense of legislative determination and not judicial of quasi‑judicial or administrative. Similarly the power to remove difficulties could only be by exertion of legislative power and not by an executive act. Necessarily, therefore, the power to exercise this legislative determination emanated from the Proclamation of the Martial Law dated the 4th of April, 1969 and the earlier Proclamation of Martial Law. It was to give effect to para. 2 of the impugned legislative instrument (M.L.R.103) that a complementary legislation such as the Presidential Order No.22 of 1972 was issued in pursuance of the power conferred as stated above. Textually too, it could not be branded otherwise than as a legislative instrument. The label of notification or reference to para. 2 of the impugned legislative instrument (M.L.R.103) in it would not alter its nature as it is the substance and not the form which matters ... As regards the submission that the Order was ultra vires as it provided for matters not covered by the parent legislation, it is also an exercise in futility to go into as the Order was not a subordinate/delegated legislation, but a complementary legislation having emanated from the same source as the impugned legislative instrument (M.L.R.103)."

10. It would, therefore, be not possible on the basis of Muhammad Afzal's case P L D 1963 SC 401 to compartmentalize such legislative instruments or to convass for the continued existence of Presidential Order No.22 of 1972 as a purely Presidential Order.

11. The second ground for review taken for the first time ever in such a precise and pointed form in the Constitutional history of Pakistan cannot be allowed to prevail. It attempts to alter the very foundations of the judgment sought to be reviewed. The foundations were laid by the parties themselves. In review a retrial on such a fundamental and foundational issue cannot be permitted. It is against public policy. It is against the practice of the Court. It will be unfair to the Judges deciding the cane. Besides, and this too is important, this plea directly attacks the law laid down in the State v. Zia‑ur -Rahman and others P L D 1973 SC 49 at p. 81 in the following words;‑‑ "As I read the provisions of Article 281, it seems to me, that it was designed to achieve a three‑fold purpose. The first clause thereof was intended to give a blanket validation to all legislative measures enacted on and from the 25th day of March, 1969, when General Yahya Khan usurped power, to the 21st of April, 1972, when the Interim Constitution came into force. This clause not only validates all such measures but also nullifies the effect of the judgment of this Court in Asma Jilani's case by using the words `notwithstanding any judgment of any Court' and further completely ousts the jurisdiction of the Courts to question either the validity of these measures or the competence of the authorities enacting them. As a result of this clause, it is no longer possible for any Court to declare any legislative measure enacted or promulgated between the 25th day of March, 1969 to the 21st of April, 1972, to be void or invalid, on account of it having been made or enacted by a person or authority having no power to do so."

12. Now what the learned counsel seeks is that validation and repeal should stop at 17th April, 1972 and should not go up to 21st April, 1972.

13. The argument is not that such validation could not take place but that it has not taken place. This argument is based on the language of Article 270‑A of the Constitution as substituted by Act XVIII of 1985 with effect from 30‑12‑1985. The difference in language is not decisive. Improvement in language is possible at every stage. Where the object is not in doubt, the language not equivocal; such an exercise by recourse to subsequent legislation is not permissible.

14. The doctrine put forward by the learned counsel for the petitioner that a legislative measure emanating from an individual should have a different test for its valdity and approval than when it is institutional, as made by the legislature in full view of the public cannot prevail. Here, the question is not so much of its antecedent validity and efficacy as of the Constitutional validation of the same by the Interim Constitution and by the 1973 Constitution. That matter has been gone into depth and held to have been validated for all purposes.

15. The prominent feature of the case which has been emphasized more than once in the judgment is that the funds sought to be retrieved were trust funds. This Court had held after elaborate examination that such trust funds were under threat of dissipation and all authorities including the Courts are, therefore, enjoined to look upon them with particular favour and to take somewhat unusual and stringent measures to force and protect them. This would explain that it was not an action against an individual but a class action to protect the trust funds.

16. Factual inaccuracy alleged and pointed out in working out the assets and the liabilities of the company need not be gone into afresh in depth because the main features of it remained undisputed and the decision proceeds more on the question of law and principle than on the money worth involved in the litigation.

17. Islam protects trust funds more. Its protection, retrieval is justified by all means and such an exercise cannot be considered akin to compulsory acquisition of private property.

18. We find no ground made out for review of the judgment and the Review Petitions are dismissed. M.BA./S‑682/S Petitions dismissed.