P L D 1964 (W (PLP)

ORTCHESON, J.‑‑‑‑The facts leading up to this reference are as under. In December 1959 Sardar Muhammad Akbar Khan Bugti (hereinafter referred to as the offender) was convicted by a Special Military Court of the offence of murder and sentenced to death and a fine of rupees five lacs. The above penalties were, however, progressively lightened. The sentence of death was first commuted by the then Chief Martial Law Administrator of Pakistan to transportation for life. The sentence of transportation was then altered to rigorous imprisonment for fourteen years, while the amount of fine was reduced to rupees fifty thousand. Finally, the sentence of imprisonment was suspended, also by the Chief Martial Law Administrator, and on payment of the fine the offender was released on the 13th of July 1960, from the Central Jail, Hyderabad, where he had been confined. According to the petitioner, Mir Ahmad Nawaz Khan Bugti, who is the brother of the offender, no conditions were attached to the suspension order.

2. The petitioner further contends that after the offender's release he led a peaceful and law‑abiding life, but at what are described as "the last elections" two of his friends, Sardar Khair Bakhsh Khan Mari and Sardar Ataullah Khan Menghal, were elected to the National Assembly, while the petitioner became a Member of the Provincial Assembly of West Pakistan. Accord ing to the petitioner he and the other two Members referred to above gave free expression to their views on events in Pakistan under the Martial Law regime and criticised the change in the Constitution. Those views did not meet with the approval of the Central Government, which was under the erroneous impression that in giving vent to them the above Members were only acting as the mouthpiece of the offender. Various warnings were administered to the Members and the offender by a Central Cabinet Minister, the Commissioner of Quetta and by the Presi dent of Pakistan himself.

3. The offender was eventually‑ arrested at Karachi on the 22nd of August 1962, on which date the, District Magistrate, Karachi, passed the following order:-- "Whereas Sardar Muhammad Akbar Khan Bugti son of Mehrab Khan Bugti was sentenced for transportation for life by, a Special Military Court, Quetta, on the 10th December 1959. and whereas the C. M. L. Administrator had commuted the sentence of transportation for life to 14 years' rigorous impri sonment and a fine of Rs. 50,000 and had further directed that the imprisonment of 14 years be suspended and whereas vide Judge Advocate‑General, G. H. Q. Rawalpindi order No. 1000 ML/JAG, dated 16th August 1962, the Commander‑in‑Chief Army had directed that the said sentence of 14 years R. I. be put into execution forthwith. "Now therefore in exercise of the powers conferred by clause (3) of Article 6 of the Martial Law (Pending Proceedings and Protection) Order, 1962 (President's Order No. 26 of 1962) read with clause (2) of Article 3 of the M. L. Order (Repeal) Order 1962 (President's Order No. 29 of 1962) this is to authorise and require you the said Superintendent of Jail to receive the said Sardar Muhammad Khan Bugti son of Mehrab Khan Bugti into your custody in the said jail together with this warrant and there carry the aforesaid sentence into execution according to law. "The prisoner is to be given `B' class." The above order was duly carried out. It may incidentally be noted that although it is stated therein that the offender was sentenced to transportation for life by the Special Military Court, it is averred in paragraph 2 of the petition that the was actually sentenced to death, the latter statement, being in fact correct.

4. It was first intended to file a writ petition against the offender's alleged illegal detention before the Karachi Bench of this Court and instructions to that effect were given to counsel, but before the petition could be filed the offender was removed from Karachi to Lyallpur, the present petition being accord ingly presented in the Lahore Registry on the 13th of September 1962.

5. The detention of the offender is challenged in paragraph 9 of the petition on the following grounds :‑ (a) That the sentence of fourteen years' rigorous imprison ment was suspended by "the Chief Martial Law Administrator and President of Pakistan" who had full power to do so and that no authority in Pakistan had the power to withdraw the order. (b) That on the coming into force of the present Constitution on the 8th of June 1962, the Chief Martial Law Administrator ceased to exist, it being further contended that the plenary powers enjoyed by him are no longer available to any other authority. (c) That the Commander‑in‑Chief had no authority to revoke the unconditional suspension of sentence granted by the Chief Martial Law Administrator. (This is in reality only a repetition in a different form of the ground advanced in (b) above.) (d) That the order of the District Magistrate, Karachi, dated the 22nd of August 1962, is illegal, President's Order No. 26 of 1962, and clause (2) of Article 3 of President's Order No. 29 of the same year, cited in the said Order, being inapplicable to the facts of the case. (e) That the orders impugned have been passed male fide with a view to prevent expression of views by the repre sentatives of the people on fundamental issues concerning the country.

6. The writ petition first came up for hearing before a learned Single‑ Judge of this Court, who, by order dated the 14th of‑September 1962, issued a direction to the Home Secretary, Government of West Pakistan, to produce all the relevant docu ments by the 1st of October 1962. On the latter date notice was issued to the State by a Division Bench. On the 11th of October 1962, however, the learned Single Judge directed that as two very important points of law were involved, the case should be heard by a Full Bench. The points in question are evidently those referred to in the order of the 1st of October, namely, the jurisdiction of the District Magistrate, Karachi, to issue the order of detention and the competence of the Commander‑in -Chief Army to give the direction to the District Magistrate on the basis of which the order of the latter was passed. The case was eventually placed before this Bench. A Bench of five Judges would in all probability not have been constituted for this case alone, but as the present Bench had been formed to hear certain cases connected with the Frontier Crimes Regulation, this case was also placed before it.

7. It will be convenient at this stage to set out the relevant provisions of law.

8. As already stated, the offender was tried and convicted by a Special Military Court. Such Courts were set up under paragraph (a) of Martial Law Regulation 1‑A, promulgated by the Chief Martial Law Administrator, which lays down that Special Military Courts shall have the power to try and punish any person for contravention of Martial Law Regulations or Orders or for offences under the ordinary law. The relevant portion of para graph (b) of the said Regulation runs: "Special Military Courts.‑An Administrator of Martial Law may convene Special Military Courts in his area of adminis tration for the trial of any offence committed in any area to which these Regulations extend : provided that the term ordinary law as above mentioned shall in each case be held to include the provisions of any special law for the time being in force in that area. Subject to the provisions of these regulations a Special Military Court shall be constituted in the same manner, and shall exercise the same powers and follow the same procedure as a Field General Court Martial convened under the Pakistan Army Act, 1952, and the provisions of that Act and of the rules made thereunder shall apply to, and govern all such pro ceedings: Provided that :‑ (i) Any person exercising the powers of a Magistrate of the first class or of a Sessions Judge may be appointed a member of the Court. (ii) The Court may pass any sentence authorised by law or by these Regulations. (iii) All sentences of death shall be reserved for confirmation by an appointed Administrator of Martial Law, irrespective of his rank.

9. Paragraph 9 of Martial Law Regulation No. 61 (also promulgated by the Chief Martial Law Administrator) lays down that nothing in the said Regulation shall prevent a review of sentence by the Deputy Chief Martial Law Administrator where the sentence is not less than seven years' rigorous imprisonment where the Chief Martial Law Administrator sees fit, by general or special order, to direct such review.

10. Under section 87 of the Pakistan Army Act a Field General Court Martial shall consist of not less than three officers, but although such a Court is, under section 84, convened by an officer empowered in that behalf by an order of the Central Government or of the Commander‑in‑Chief, Special Military Courts are, as has been seen above, convened by an Administrator of Martial Law‑in the present case the Martial Law Adminis trator, Zone B'.

11. Paragraph 5(1) of Martial Law Regulation No. 61 provides that every sentence imposed by a Special Military Court trying a case in pursuance of paragraph I of the said Regulation shall be subject to confirmation as prescribed under the Pakistan Army Act in respect of sentences imposed by a Field General Court Martial. Section 123 of the said Act lays down that the finding and sentence of a Field General Court Martial may be confirmed by the convening officer or, if the convening officer so directs, by an authority superior to him. As Special Military Courts are convened by the Martial Law Administrator concerned, the sentence, in the present case were confirmed by the Martial Law Administrator, Zone `B'.

12. For the purposes of the present case, however the most important sections of the Pakistan Army Act are sections 144, 148 and 149, which run as follows :‑ Section 144: "(1) Where a person subject to this Act has been sentenced by a Court Martial to transportation, rigorous imprisonment or detention, the Central Government, or the Commander‑in Chief, or any officer empowered to convene a general or Field General Court Martial may suspend the sentence whether or not the offender has already been committed to prison or custody. (2) The authority or officer specified In subsection (1) may fn the case of an offender so sentenced direct that, until the orders of such authority or officer have been obtained, the offender shall not be committed to prison or custody. (3) The powers conferred by subsections (1) and (2) may be exercised in the case of any such sentence which has been con firmed, mitigated or commuted." Section 148: "The authority or officer specified in section 144 may, at any time whilst a sentence is suspended, order‑ (a) that the offender be committed to undergo the unexpired portion of the sentence ; or (b) that the sentence be remitted." Section 149: "(1) Where a sentence has been suspended, the case may at any time and shall, at intervals of not more than four months be reconsidered by the authority or officer specified in section 144 or by an officer not below the rank of filed officer duly authorised in this behalf by the authority or officer specified in section 144. (2) Where on such reconsideration by the officer authorised in this behalf under subsection (1), it appears to him that the conduct of the offender since his conviction has been such as to justify a remission of the sentence, he shall refer the case to the authority or officer specified in section 144."

13. It is particularly to be noticed that though subsection (1) of section 144 makes no reference to sentences of death, sub section (3) of the same section confers the power of suspension on the authority concerned in the case of any sentence which has been commuted, and in the present case the sentence of death originally passed on the offender was commuted to transportation for life and then altered to a term of fourteen years' rigorous imprisonment.

14. Article 225(3) of the present Constitution lays down that as and from the commencing day all Martial Law Regulations were, with the exception of those specified in the table to the said clause, repealed Martial Law Regulations 1‑A and 61 are not included in the table and were consequently repealed by virtue of the above provision. Martial Law Orders were, on the other hand, repealed one day earlier, on the 7th of June 1962, by a Presidential Order (No. 29 of 1962). Clause (e) of Article 250 of the Constitution, however, lays down that where a law is repealed or deemed to have been repealed by, under, or by virtue of the Constitution, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the law, while clause (d) makes a similar provision in respect of any penalty, forfeiture or punishment incurred in respect of any offence committed against the law.

15. On the 6th of June 1962, Presidential Order No. 26 was passed under the title of "Martial Law (Pending Proceedings and Protection) Order". The relevant portion of the preamble to the said Order runs: "And whereas by the operation of the provision in Article 250 of the Constitution only those liabilities under the repealed Martial Law Regulations, shall remain effective after the repeal of those laws, which have been incurred before the commencing day ; And whereas it is necessary to provide for the disposal of those cases which may be pending before Martial Law Authorities." Sub‑paragraph (3) of paragraph 6 lays down that every sentence of imprisonment passed during the Martial Law period by a Martial Law Authority, which was not put into execution during the Martial Law period, may be put into execution under the warrant of the District Magistrate of the district in which the person under sentence may be found.

16. As I see it, the necessity for passing President's Order No. 29, referred to in paragraph 14 above, would appear to be that clause (3) of Article 225 of the Constitution relates only to the repeal of Martial Law Regulations, no provision being made anywhere in the Article for the repeal of Martial Law Orders. Moreover, under clause (1) of the Article all existing laws were, except as provided by the Article and subject to the Constitution, to continue in force, and the expression "existing laws", as defined in clause (7), includes all laws in force in Pakistan or any part of Pakistan, or having extra territorial validity, immediately before the commencing day. Had it not been for President's Order No. 29, therefore, it might have been argued that as Martial Law Orders came within the definition of laws in force in Pakistan immediately before the commencing day, they continued to remain in force.

17. On the 22nd of October 1962, i.e., after the present petition had been admitted, the President promulgated Ordi nance LXXVIII of that year, entitled "Military Court sentences (Supplementary Provisions) Ordinance". Clause 2 runs: "(1) Notwithstanding anything contained in any other law for the time being in force, the Commander‑in‑Chief of the Pakistan Army may (a) either with or without any condition pardon any person convicted of an offence by any Special or other Military Court or any other Martial Law Authority constituted under any Martial Law Regulation or Martial Law Order, or remit, reduce, commute or suspend any sentence passed on him by any such Court or Authority ; and (b) revoke or set aside any order, suspending any such sentence made either by him under clause (a), or by any other Martial Law Authority, including the Chief Martial Law Authority, before the commencement of this Ordinance, and may put into execution any sentence the suspension of which has been so revoked or set aside. (2) Any order made by the Commander‑in‑Chief of the Pakistan Army before the commencement of this Ordinance which would have been competent to him under subsection (1) shall be valid as if this Ordinance had been in force at the time when the order was made." According to learned counsel for the petitioner the above Ordi nance was promulgated with the express purpose of validating the order of the Commander‑in‑Chief of the Pakistan Army referred to in the order of the District Magistrate, Karachi, dated the 22nd of August 1962, directing that the suspended sentence be put into execution, but even if this is so, it can have no effect on the case.

18. I now floss to the case presented on behalf of the petitioner on the basis of the facts and law set out above.

19. One of the main arguments of Sheikh Muhammad Shafi is that although the order of suspension of sentence, which is dated the 29th of June 1961, purported to be passed by the Chief Martial Law Administrator, it was in reality passed by Field Marshal Muhammad Ayub Khan in his capacity of President of Pakistan. This contention appears to be in the nature of an afterthought, since although in paragraphs (1) and 9(a) of the petition it is no doubt recited that the sentence was suspended by "the then Chief Martial Law Administrator and President of Pakistan", the relevant portion of paragraph 2 runs: "This sentence was commuted by the then Chief Martial Law Administrator of Pakistan . . . . The Chief Martial Law Administrator was further pleased to order suspension of the sentence of fourteen years' R. L" Again, in paragraph 3 it is stated: "That no conditions whatever were attached to the order of suspension of sentence passed by the Chief Martial Law Administrator who was the source of all power and authority in the country and who was further authorised under the Martial Law Regulation No. 61 to direct the review of any sentence imposed by the Special Military Courts . . . . " It would thus appear that at the time of filing the petition the petitioner had no doubts as to the capacity in which Field Marshal Muhammad Ayub Khan acted in directing the suspension of the sentence, and that the words "Chief Martial Law Administrator and President of Pakistan" were intended merely to give his full designation, just as in the suspension order the description of the authority passing the order is "Supreme Commander and Chief Martial Law Administrator". In the heading to the order, on the other hand, the words "Chief Martial Law Administrator" alone are used.

20. There is no doubt in my mind that the suspension order was passed by the Chief Martial Law Administrator, though it may be added that even if in passing it Field Marshal Muhammad Ayub Khan acted as President, the validity of the order would be in no way affected. This is in fact not contested by the petitioner. His argument appears to be, not that the order is invalid, but that in suspending the sentence the President must have acted either under Article 209 of the 1956 Constitution, which conferred on him the power to suspend or commute any sentence passed by any Court, tribunal or authority established by law, or under section 401 read with section 402‑A of the Code of Criminal Procedure. The latter sections cannot, however, be invoked. The power conferred by section 401(1), Cr. P. C., vests only in the Provincial Government, while section 402‑A runs: "The powers conferred by sections 401 and 402 upon the Provincial Government may, in the case of sentences of death, also be exercised by the Governor‑General." It is thus only a death sentence that can be suspended by the President under section 402‑A, Cr. P. C., and in the present case what was suspended was not the original sentence of death but the sentence of fourteen years' rigorous imprisonment to which the death sentence had been progressively reduced by the authority concerned.

21. So far as Article 209 of the late Constitution is con cerned, the power to suspend the sentence undoubtedly vested in the President but, as already pointed out, Special Military Courts were governed by the procedure laid down in the Pakistan Army B Act and any power outside that Act is only to be invoked if the Act itself contains no relevant provision. That condition is not fulfilled in the present case, since under section 144 of the Act one of the authorities competent to suspend a sentence is the Central Government. As the President is the head of that Govern ment, the order of suspension could be considered as having been passed under section 144 even if it be assumed, without conceding, that it was passed by the President and not by the Martial Law Administrator.

22. In paragraphs 9(c) and (d) of the petition (reproduced in paragraph 5 above) the position taken up is entirely different, being based on the arguments that the Commander‑in‑Chief had no authority to revoke the unconditional suspension of sentence granted by the Chief Martial Law Administrator and that the provisions of President's Orders Nos. 26 and 29 of 1962, referred to in the District Magistrate's order dated the 22nd of August 1962, are inapplicable to the facts of the case. These arguments appear to me to be untenable. Article 5(3) of President's Order No. 26 lays down that every sentence of imprisonment passed during the Martial Law period by a Martial Law Authority, which was not put into execution during the Martial Law period, may be put into execution under the warrant of the District Magistrate of the District in which the person under sentence may be found. Moreover, a Regulation of the Chief Martial Law Administrator, which, under clause 4 of the Laws (Continuance in Force) Order, 1958, could be used to modify or even repeal laws, had itself the status of a law, and clause (c) of Article 250 of the present Constitution provides that where a law is repealed by, under, or by virtue of the Constitution, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the law. Even though therefore, the Chief Martial Law Administrator was not one of the authorities falling within the strict ambit of section 144 of the Pakistan Army Act, a sentence suspended by him was, in my opinion, clearly subject to the liability that the offender might be subsequently committed to prison to undergo the unexpired portion of his sentence by one of the authorities specified in section 144, which liability continued even after the Martial Law period. As already pointed out, the Commander‑in‑Chief is one of the authorities competent, under section 144 of the Pakistan Army Act, to suspend a sentence, and it can be reasonably argued that he had also the power to commit the offender to prison.

23. Sheikh Muhammad Shafi relied on Jalal Din v. Muhammad Akram Khan (P L D 1963 Lah. 596) in support of the proposition that the order of suspension of sentence passed by the Chief Martial Law Administrator has become immune from attack. The view taken in the authority in question, namely, that anything done under any Martial Law Regulation, no matter by which authority that '" Regulation was passed, is protected from attack, is not in accord with the law as now declared by the Supreme Court in Muhammad Afzal v. Commissioner, Lahore Division, etc. (P L D 1963 S C 401), but as the Regula tions now under consideration were passed by the Chief Martial Law Administrator, whose Regulations were held by the Supreme Court to be protected, that is not material. In my opinion, however, the authority relied on is not in point, since there is no question of any attack on the order of suspension. The point for consideration is the very different one of whether the order of suspension is to be considered as fixed and immutable, or whether it is subject to the like consequences as follow from the suspension of the sentence by one of the authorities referred to in section 144 of the Pakistan Army Act.

24. If, however, Central Ordinance No. LXXVIII of 1962 is intra vires, it is not necessary to give any definite decision on the question whether the order of the Commander‑in‑Chief was valid at the time the petition was admitted, since the Ordinance in question expressly validates such orders.

25. One of the grounds of attack on the Ordinance advanced by learned counsel for the petitioner has at least the merit of originality. He calls attention to the fact that although the National Assembly met in Dacca in April 1963, Ordinance No. LXXVIII of 1962 was not placed before it, and contends that the effect of this omission is to render the Ordinance invalid ab initio. In support of this argument he relies on Article 29(4) of the Constitution, which runs: "If the National Assembly has not approved or has not disapproved of the Ordinance, and it has not been repealed by the President, before the expiration of the prescribed period, it shall it cease to have effect, and shall be deemed to have been repealed upon the expiration of that period." Under clause (6) of the said Article the prescribed period means either the period ending forty‑two days after the first meeting of the National Assembly following the promulgation of the Ordinance or the period ending one hundred and eighty days after the promulgation of the Ordinance, whichever is the shorter. Learned counsel has interpreted the words emphasised in clause (4) above as meaning that if an Ordinance is not placed before the Assembly, it must be considered never to have had effect at all, but this is a proposition for which there is no authority, and which I find myself entirely unable to accept. It is obvious that before an Ordinance can cease to have effect, it must previously have had effect, and all that is laid down by Article 29, taken as a whole, is that if it is not laid before the National Assembly any possibility of the continuance of its life is removed and it will be deemed to have been repealed on the expiration of the prescribed period. In my opinion therefore, the Ordinance to dispute is subject to the usual incidents of repeal set out in Article 250 of the Constitution.

26. Learned counsel for the petitioner has also cited authorities for the proposition that when an Ordinance expires the proceedings begun while it was in force automatically come to an end, but apart from the fact that the above principle has no application when, instead of merely expiring, an Ordinance is specifically declared to be deemed to have been repealed, the real question in this case is whether the Ordinance itself can have retrospective effect. Learned counsel for the petitioner did not seriously challenge this latter proposition, and if any authority is required, reference may be made to United Provinces v. Mst. Atiqa Begum and others (A I R 1941 F C 16) in which it was held that within their own sphere the powers of the then Indian Legislatures are as large ample as those of Parliament itself, and that the burden of pig that they are subject to a strange and unusual prohibition against retrospective legislation must lie upon those who assert it. No constitutional change has been brought to our attention which could have the effect of altering the above position, and in this respect no distinction can be drawn between an Ordinance and an Act, an Ordinance passed by the President having, subject to the provisions of Article 29 of the Constitution, the same force as an Act of the Central Legislature.

27. Another authority even more in point is Khaliq & Najam Co. v. Sales‑tax Officer, B‑Ward, Lahore and another (P L D 1959 Lah. 915) in which the learned Judges observed: "It follows, therefore, that the National Assembly of Pakistan envisaged by the Constitution enforced on the 23rd of March 1951, and abrogated on the night of the 7th October 1958, could make a law dealing with a matter mentioned in Federal List of the Fifth Schedule of the abrogated Constitution and as the powers of the President of Pakistan to promulgate Ordinance with regard to the matter to be legislated upon was the same as that of the National Assembly to make laws, an Ordinance promulgated by the President could be made retrospective in operation."

28. Learned counsel for the petitioner cited two authorities of the Supreme Court, The Sargodha Bhera Bus Service Limited v. The Province of West Pakistan, etc. (P L D 1959 S C (Pak.) 127) and Province of East Pakistan etc. v. Muhammad Mehdi Ali Khan (P L D 1959 S C (Pak.) 387). In the first of these it was held that an Ordinance cannot permanently repeal a permanent Act and that the expiry of the Ordinance on the lapse of six weeks after the next meeting of the Legislature revive the permanent statute in question, while in the other it was laid down that existing laws contravening fundamental rights regained their full operation on the abrogation of the 1956 Constitution with the utmost respect to learned counsel, however, I do not quite see how the above pronouncements of the Supreme Court help the petitioner.

29. In my opinion, therefore, Ordinance No. LXXVIII of 1962 is open to no objection, and if any validation of the order of the Commander‑in‑Chief, carried into effect by the District Magistrate, Karachi, be deemed to have been required, it is provided by the Ordinance.

30. I am also not impressed with the argument implied in ground (c) in paragraph 9 of the petition that as no conditions were imposed on the offender while suspending his sentence, the suspension could not subsequently be cancelled on the grounds of his alleged objectionable behaviour. As already pointed out, paragraph (b) of Martial Law Regulation 1‑A lays down that the provisions of the Pakistan Army Act shall apply to and govern all proceedings before a Special Military Court. The passing of sentence was a part of the proceedings of the Court which sentenced the offender, and, in my opinion, that sentence was, therefore, subject to the incidents of the said Act. Section 144 of the Act does not distinguish between unconditional and condi tional suspension, nor does section 148 lay down that it is only in the case of a conditional suspension that the offender may be, committed to undergo the unexpired portion of his sentence. In both sections the word "suspend" is used without any qualifica tion. Moreover, paragraph 2 of the suspension order, a copy of which was placed before us by the learned Advocate‑General begins "I suspend the sentence of rigorous imprisonment for four teen years . . . . . ." The notion of unconditional suspension has, therefore, been imported into the order by learned counsel for the petitioner and finds no place in the order itself. In these circumstances, I am unable to find any good ground for holding that the order of suspension was intended to be complete and absolute.

31. No other argument advanced by sheikh Muhammad Shafi has any force. I would, therefore, dismiss the petition, but without any order as to costs. S. A. MAHMUD, J.‑I agree. A. R. KHAN, J.‑I agree. MUHAMMAD DAUD KHAN, J.‑I agree. QADEERUDDIN AHMAD, J.‑I agree. A. H. Appeal dismissed.