P L D 1969 Lahore 1050 (PLP)

6. It is clear from the order, which has been promulgated in pursuance of the objects mentioned in rule 182, that when the property of an enemy vests in the Custodian of Enemy Property the said Custodian is then required, under rule 182, to administer or otherwise deal with the enemy property; and in so doing, has to deal with other matters which are connected with the above object or are incidental thereto. Keeping in view the above capacity of the Custodian of Enemy Property and reading paragraph 4 of the Order subject to the above purpose, it becomes clear that the Custodian may take or authorise the taking of all such measures, as are necessary or expedient for preserving the enemy property. This general power will, by necessary implication, include the authority to institute proceedings, so as to preserve an enemy property. However, the matter does not end here. Clause (ii) of sub‑paragraph (2) of paragraph 4 of the Order, further specifically provides that for the purpose above mentioned the said Custodian can take action for recovering any money due to the enemy. In the context of this case, the claim of the State Bank of India against the Custodian of Evacuee Property undoubtedly being of money, the Custodian of Enemy Property can take proper action for the recovery of that money from the Custodian of Evacuee Property. Therefore, the writ petitions could be filed against the latter by the former for recovery of money. Clause (iv) of sub‑paragraph 2 of paragraph 4 makes provision for the said Custodian to institute, defend or continue any suit or other legal proceeding. The phrase "other legal proceeding" is very wide. At any rate, it is not limited by any restricted definition; and will include c the proceedings in writ jurisdiction under Article 98 of the Constitution. Therefore, in the present case, the said Custodian could institute a writ petition; and if it had already been filed, he could continue the same during the Emergency. Here it is necessary to refer to paragraph 5 of the Order quoted above. It provides that the enemy property vesting in the Custodian shall be exempt from attachment, seizure or sale in execution of an order or decree of a Civil Court or any other authority. By giving full effect to this provision, it will have to be assumed that the Custodian of Evacuee Property could not have executed his order in respect of the property of the State Bank of India vesting in the Custodian of Enemy Property, by any process mentioned in that paragraph. If that is so, it will logically follow that the latter Custodian, in order to preserve the property of the enemy bank, would be competent to institute, defend and continue all the proceedings in respect of the order passed by the Custodian of Evacuee Property.

7. It may be noticed with respect, that the learned: Single Judge was of the view that the provisions contained in the Order was mentioned in two Division Bench judgments of this Court, to which we will presently refer, and because in those two cases, no such interpretation, as is given by us above, was considered or applied; therefore, the petitioner before his Lordship could not benefit from the provisions of the Order. In one of those cases, i.e., Writ Petition No. 659 of 1959, decided on 25th April 1966, the matter was decided, simply by referring to In re Reference No. 1 of 1965 (P L D 1966 Kar. 160). There is no discussion of any of the questions raised before us in the unreported case. Therefore, the only decision to be considered in the context is the Karachi case. It is, again with respect, pointed out that it was not held in the Karachi case that the writ petitions filed by the enemy subjects before the Emergency could not be continued by the Custodian of Enemy Property. As will be presently seen, the decision in the Karachi case was contrary to this supposition.

8. Another reason given by the learned Single Judge for dismissing the writ petitions was that the Custodian of Enemy Property had not formally been made a party in the writ petitions; nor there was any application before his Lordship in that behalf. One fact is clear that the learned counsel appearing on behalf of the petitioner Bank before the learned Judge clearly stated that the Custodian of Enemy Property wanted to continue the writ petitions. However, the learned Judge found it difficult to keep the petitions pending, without there being a power‑of‑attorney by the said Custodian in favour of Mr. M. Anwar, the learned Advocate who made that request. It will have to be noticed that the provisions made in respect of the enemy subjects and enemy property were so made in public interest. The powers, functions and duties of the Custodian of Enemy Property were also in aid of public interest. In these circumstances, the provisions having been brought to the notice of the learned Judge, a notice should have gone to the Custodian of Enemy Property to appear and explain its position, qua the subject‑matter of the writ petitions. This was necessary, even if no information had been laid before the learned Judge in respect of the above‑mentioned particular desire of the said Custodian conveyed by the learned counsel. Therefore, the dismissal of the writ petitions without affording an opportunity to the said Custodian to appear and pursue, prosecute and continue the matters pending in the High Court, it is with respect observed, cannot be justified and the orders merit to be set aside on this ground.

9. Sardar Hidayat Ullah, the learned Settlement Commis sioner, raised a technical objection in respect of the filing of the present letters patent appeals by the Custodian of Enemy Property. According to him, the petitioner in the writ petitions was the State Bank of India; therefore, the appeals could not be filed by the Assistant Custodian of Enemy Banks who, according to him, was not a party before the learned Single Judge. It may be noticed that in form the appeals have been filed in the name of State Bank of India by the Assistant Custodian of Enemy Banks. Looked at from the purely technical angle suggested by the learned Settlement Commis sioner, the very fact that the appeals are filed in the name of the State Bank of India is a sufficient answer to his objection. Such a procedure is also permissible under the principle con tained in Order XXII, rule 10, C. P. C. But, in our view, in substance the objection is untenable because if the proceedings in the writ petitions could be continued by the Custodian of Enemy Property in spite of the fact that he was not formally made a party in the writ petitions, he could definitely file appeal:; and thus continue the proceedings in the writ petitions, in letters patent appeals. In any case the writ petitions having teen dismissed by a learned Single Judge, the letters patent appeals could be filed by the said Custodian directly by virtue of clause (iv) of sub‑paragraph (2) of paragraph 4 of the Order, wherein it is provided that the Custodian may institute any legal proceedings; therefore, the filing of letters patent appeals against the judgments of a learned Single Judge in writ jurisdiction is, in no way, defective on the technical ground taken by the learned Settlement Commissioner.

10. With regard to the question of the effect of the Emergency Laws on section 83, C. P. C., and as to what is the effect of the provisions contained in that section on the present matter, it is necessary to refer to section 14 of the Ordinance. It reads as follows :‑ "

14. Jurisdiction of Ordinary Courts.‑(1) Except as may be provided in this Ordinance or in any rule made thereunder or in any order made under any such rule by the Central Government or the Provincial Government or by an officer not below the rank of Collector empowered under sub section (4) or subsection (5) of section 3 to make such order, the ordinary criminal and civil Courts shall continue to exercise jurisdiction. (2) Any provision in any such rule or order as aforesaid to the effect that the decision of any authority, not being a Court, shall be final or conclusive shall be a sufficient excepting provision within the meaning of subsection (1)." It is clear from the above provision that except as may be provided in the Ordinance, the rules and the specified Orders made thereunder, the ordinary criminal and civil Courts shall continue to exercise jurisdiction. The exercise of jurisdiction will have to be understood, with reference to various provisions of laws relating to jurisdiction. In the present matter, one of such provisions is section 83, C. P. C. With regard to the effect of the Rules on other laws, we have already referred to section 4 of the Ordinance which provides that any rule made under section 3 thereof or any order made under any such rule, shall have full effect, notwithstanding anything in consistent therewith contained in any other law. We have earlier noticed the other provisions contained in the Emergency Laws relevant to the present matter. The provision contained in the ordinary law in the context is section 83, C. P. C., which it is necessary to be reproduced :‑ "83.‑(1) Alien enemies residing in Pakistan with the permission of the Central Government, and alien friends, may sue in the Courts in the Province, as if they were citizens of Pakistan. (2) No alien enemy residing in Pakistan without such permission, or residing in a foreign country, shall sue in any of such Courts. Explanation.‑Every person residing in a foreign country the Government of which is at war with or engaged in military operations against Pakistan and carrying on business in that country without a licence in that behalf under the hand of a Secretary to the Central Government shall, for the purpose of subsection (2) be deemed to be an alien enemy residing in a foreign country." The subject of the effect of section 83, C. P. C., on proceedings by or against alien enemies, was considered at length In re Reference No. 1 of 1965 (P L D 1966 Kar. 160). Soon after the War of 1965 but during the continuance of Emergency, the question arose as to what is the effect of War with India, the Emergency arising therefrom and the laws enacted in that connection on suits pending in the High Court, Karachi Bench, on the original side. Some of these suits were filed by alien enemies and in others they were defendants. The legal question involved being of general importance, it was referred to a Division Bench. Late Mr. Justice Ilahi Bakhsh Khamisani and Waheeduddin, C. J., after making brief references to the various provisions contained in the Ordinance, the rules and the Order referred to above, and also relying on precedent law, summarized their conclusion as follows "In answering this reference we have merely to lay down general principles on the basis of which the actions pending in Court whether on the Original Side or on the Appellate Side can be disposed of. On the discussion of the eases mentioned above the undisputed position that emerges and which has also the concurrence of the learned counsel appearing in this reference is that (1) The suits in which the plaintiffs are enemy aliens cannot proceed. (2) The suits in which the defendants are enemy aliens can proceed. If the enemy property is involved and vets in the Custodian of Enemy Property it is open to him to continue or defend the suit. (3) In the case of appeals an enemy plaintiff is not competent to file an appeal during the continuance of the hostilities on the principle that on account of the action pending in appeal the alien enemy may get such benefit which is likely to enrich the enemy country. Such action, if pending, will be suspended. In the case of enemy defendants they are entitled to file appeals and to pursue their remedy in the same way as any other citizen of Pakistan. But in cases where, after the conclusions of the appeals, the alien enemy gets pecuniary benefit conducive to the enrichment of the enemy country, he will not be entitled to derive any benefit out of it; and would therefore be not competent to enforce it. (4) The execution applications and other miscellaneous matters will also be controlled by the above‑mentioned general principles. These are some of the general principles which will govern the cases before us. Any other case pending before any other Court may be disposed of keeping in view the general pro position laid down by us in this judgment. 1 he reference stands disposed of in the light of what has been said above." Two direct conclusions follow from the discussion by their Lordships of the entire subject. They are :‑ (i) that in view of section 14 of the Ordinance if there is conflict between the Ordinance, Rules or Orders made there under, and the provision of section 83, C. P. C., the former provisions will prevail. In the present case, there does not appear to be any such conflict. The right of Custodian of Enemy Property to institute and continue legal proceedings has been preserved by the Order. Section 83, C. P. C. does not, in any way, conflict with that right/duty of the said Custodian ; (ii) that in respect of suits, section 83, C. P. C. is no bar to the said Custodian continuing to defend the suits filed against the enemy aliens; an if a decree is passed against an enemy alien, an appeal can be filed against the decree, and if such an appeal is already filed it would not be dismissed but will remain pending during the continuance of the hosti lities. Other principles laid down by their Lordships are not directly relevant for the determination of the questions involved in the present case.

11. It is now to be seen as to what is the effect of the above: interpretation of the Emergency Laws and section 83, C. P. C., in so far as the writ petitions filed under Article 98 of the Constitution are concerned. This subject is included in question No. 3 posed by us in paragraph 4 of this judgment. We have already explained in paragraph 6 of this judgment that paragraph 4 (2) (iv) of the Order applies to suits and other legal proceedings which include the writ petitions also Therefore, in so far as the Defence of Pakistan Ordi nance and Rules and Orders made thereunder are concerned, as observed earlier the writ petitions filed by the State Bank of India could be continued by the Custodian of Enemy Property under that paragraph of the Order. The Provisions of the C. P. Code are not, in terms, applicable to the proceedings under Article 98 of the Consti tution; but there is ample authority in support of the proposition that the principles contained in the Code, wherever found necessary, can be applied to those proceedings. While applying the principles contained in section 83, C. P. Code as enunciated by their Lordships of the Division Bench in the Karachi case, we will have to see as to what is the true nature and content of the writs filed in the High Court by the State Dank of India. As explained earlier in paragraph 2 of this judgment, in all these writ petitions an order passed by the Custodian against the State Bank of India for the recovery of certain sums was challenged. In some of them, there was an additional prayer also. If we treat the proceedings before the Custodian in the nature of a suit, in that case the order by the Custodian for recovery of certain sums from the State Bank of India would have to be treated, notionally for Vic purpose of the present discussion, as decrees in favour of the plaintiff (Evacuee Custodian) against the defendant (State Bank of India). Those proceedings having concluded, the State Bank of India filed the writ petitions challenging those orders (the notional decrees). Though that writ jurisdiction under Article 98 of the Constitution is not at all an appellate jurisdiction; yet for the purpose of maintaining the continuity of the above‑mentioned notion, it will have to be assumed, in this case, that when the State Bank of India applied to the High Court for setting aside the order (notional decree) passed by the Custodian, it was an appeal to the High Court by means of the application under Article 98 of the Constitution, seeking redress, as a notional defendant judgment‑debtor against the said notional decree passed in favour of the said notional plaintiff (the Custodian of Evacuee Property). Looking at the subject from this angle and applying the principles enunciated in the Karachi case, it becomes clear that the petition under Article 98 of the Constitution (in the form of an appeal as explained above) having been filed before the Emergency, could not be dismissed but would have remained pending; and at the most the action on those proceedings would be suspended during the Emergency. We particularly refer to the answer by their Lordships contained in sub‑paragraph (3) of paragraph 16 of their judgment quoted above, wherein it is specifically stated that "in the case of enemy defendants they are entitled to file appeals and to pursue their remedy in the same way as any other citizen of Pakistan". One condition, however, is added that if the enemy alien succeeds in such an appeal and in that success if he gets some pecuniary benefit conducive to the enrichment of the enemy country, he will not be entitled to derive any such benefit; meaning thereby that he will not be able to enforce an order passed in appeal in his favour; so as to benefit the enemy country. On the above view of the matter also, the writ petitions filed in the High Court against the orders passed by the Custodian could not be dismissed as incompetent during the Emergency.

12. The next question to be considered is whether the writ petitions could be kept pending under the rules and principles relating to enemy property and enemy subjects, with reference to the general law of war and peace. One basic principle on which all systems of law agree, and which is based on public policy, is ; the preservation and protection of the State/country and destruction of the enemy to achieve the former end. In doing so, any action or conduct on the part of any person or body which has the effect of helping or enriching the enemy is not permissible. This of course is always subject to the law of the country so long as the hostilities continue and the emergency exists, and thereafter, it is subject to that law and the peace treaty, if any, entered into with the enemy. The above principle has been recognised in England and dominions, in various judgments based on common law. The enactments brought about during the Second World War in England also, by and large, followed this principle. All the important and relevant cases dealing with this principle have been considered in the Karachi case already cited, and therefore, need not be noticed here. The American Law with regard to the above principle is summarized thus: Courts are not permitted to entertain the suits by alien enemies because it would give aid and comfort to enemy country as its resources may be added to and increased by the judgment recovered. But this rule is not unqualified. It will not be applied in a class of cases manifestly not within the mischief at which it is aimed. Enemy aliens are precluded from bringing suits only so far as this is necessary to prevent the use of the Court to accomplish a purpose which might hamper the war effort or give aid to the enemy. In this con nection, the United States Supreme Court has said that there is nothing mysteriously noxious in a judgment for an alien enemy; objection to it goes only so far as it will give aid and comfort to the other side. The object is not to defeat the alien enemy of his right to recover whatever may be owed him, or to shield the citizen from the enforcement of his just obligations, but to prevent any advantage by the enemy, directly or indirectly, pending hostilities. The rule applies to a corporation organized under the laws of a foreign country and doing business there and it is not abrogated by The Hague Convention. (American Jurisprudence, Vol. 56, Chapter VII).

13. The law of war and peace with special reference to enemy subjects is fairly elaborate in Islamic Jurisprudence. In Muslim legal theory, the object of war is not, per se, the achievement of victory nor the acquisition of the enemy's property. It is rather the fulfilment of a duty in Allah's path by universalizing and preserving the Islamic faith (Ibn Rashd, Kitab al-Muqaddimat al‑Mumalihidat Cairo A 1=1 1325, Vol. I, p.

266. In, pursuance of this very rule, the participants in war were advised to refrain from the shedding of blood or the destruction of property which was not necessary for the achievement of the above object. 'F This very object was declared by Hadrat Abu Bakr (Peace be upon him), in his address to the first expedition sent to the Syrian borders. Similar advice was given by the other Caliphs (Peace be! upon them). The salutary rule contained in the above‑mentioned! legal theory is derived directly from the Qur'an, "He who exerts himself, exerts only for his own soul" (Q. XXIX, 6) This is a Makkan revelation. In the Madman revelations, however, the mention is often made of "strife" (Q. II, 216); (Q. LXVI, 9). Even in strife, Muslims are directed to exert all their powers in Allah's path and this truly is the meaning of jihad. If interpreted literally, it means `exertion'. In almost all the verses relating to jihad, one object remains consistently apparent that it is not for the purpose of worldly gains but is for the purpose of fulfilment of a spiritual duty and mission. The motive, it is stressed should not be the worldly gains. On the contrary, jihad, implying as it does `exertion' includes the sacrific ing of wealth and life (Q. IX, 41, Q. XLIX, 15; Q. LXI, 11). Thus the basic and fundamental object of war in Islam is not the physical gain in terms of property. If that is so, a necessary conclusion will follow that simply for the sake of physical gain, the enemy SUBJECTS WALL NOT BE DEPRIVED OF THEIR PROPERTIES AND FIGHTS TO DEAL WITH THOSE Properties. The practical application of above conclusion is found in the law relating to enemy subjects (hurbis) living in the enemy territory (Dar‑ul- Harb) or those living in their own realm (Dar‑ul‑Islam). With regard to the first category, there is concensus o opinion of the jurists (except kharji) that non‑combatants not taking part in the fighting are not to be molested. However, if any of then helps the enemy in prosecution of war by practical aid or in the form of potential help, he (and his property) has no general protection. Ibn Hisham, in Kitab al‑Sira, ed. Wustenfeld (Gottingen, 1960), Vol. II, pp. 841‑2‑852. relates an incident in the Battle of Hunayn. The Musalmans killed Durayd ibn‑al Simma, an old man because he gave useful advice to the enemy for fighting the battle. Peasants and merchants are also subject to the above general rule and exceptions thereto. The subject of spoils or confiscation however relates to the question of victory and consequences flouring therefrom and are to be studied vis‑a‑vis the modern concept of `peace treaty' which is not relevant to the present discussion. '' Coming now to the position of an enemy alien living in orb visiting Dar‑ul‑Islam, it is to be noted that aman could be given to him by the State qua both person and property. When under aman he is called Mustamin. He has almost every right to deal with and protect his property in Dar‑ul‑Islam. However, if he acts as a spy he loses the protection. Similarly he is not allowed to deal in any commodity which can be of help to the enemy in war effort or general strengthening of the position against Dar‑ul‑Islam. The transactions thus entered into by the Mustamin which have the effect of adding to the war potential of the enemy are void, but his money can be returned back to him (Abu Yousuf). The rule against addition to war potential is very strictly applied. In so much as if a Mustamin married a Dhimmi woman, he could take her back to Dar‑ul 1‑garb bia if a Mustarnin woman married a Dhimmi man, she could not take him to Dar‑ul‑Harb because this might constitute addition to potential power to be used against Dar‑ul‑Islam, al Hidaya). Similarly, the rule as to aman is also very strictly applied. If Mustamin after his return to Dar‑ul‑Harb died, leaving some property in Dar‑ul‑Islam, it could not be inherited by his heirs (because at the time of devolution, he was out of Dar‑ul‑Islam with aman being in suspense). But if he died in Dar‑ul‑Islam, the aman granted, being existing and valid his heir could inherit the property; and subject to the bar against war potential, could also take it away to Dar‑ul‑Harb (Shaft). It is of interest to note that aman was always considered as a technical passport for the Mustamin to travel in Dar‑ul‑Islam and pursue his normal avocation including that of trade. It is so in pursuance of the principle and policy underlying the concept of aman. It is a pledge of security by virtue of which an enemy alien would be entitled to protection, while he is in the Dar‑ul‑Islam. By Muslim Authority, he becomes secured and has the safe conduct which in fact is the meaning of aman. No procedural technicality can take away the rights of a Mustamin; nor even the fact that no written aman is proved to have been given. He can be given aman, by word or sign, i.e. impliedly. Sometimes even a hint or salutation may be treated as act of giving aman. So much so that if the hint was misunderstood, the benefit of doubt would go to Mustamin. (Majid Khadduri's War and Peace in the Law of Islam). In the light of the above discussion and keeping in view the basic legal theory of war in Islam, it is clear that enemy aliens when under express or implied aman cannot be deprived of their rights as to property and to deal with it; subject, of course, to the condition that the exercise of such rights does not directly or indirectly acid to the war potential of the enemy. It may be added that what has been said above does not exclude the possibility r 3f enacting laws relating to war and peace keeping in view special circumstances, specifying of course the limitations, in the exercise of the privileges and rights mentioned above. Sufficient historical sanction and precedent for such laws and decrees is available.

14. One of the corollaries of the principle stated in the foregoing paragraph on the procedural and juridical side is that any action, if instituted before the outbreak of hostilities unless to be dealt with otherwise ay the law of tae country, is to be kept in suspense if the result of the conclusion of that action during the hostilities is or can be the enrichment of the enemy country. This rule can be found in English Law in the following statement (Ralsbury's Laws of England), Vol. 39, page 34, Ed. 3rd:‑ Subject to some exceptions. .an action commenced by an alien enemy before the outbreak of war cannot be continued after its outbreak, nor can an alien enemy plaintiff appeal in respect of a judgment pronounced against him, nor can any other person maintain an action of an alien enemy during the continuance of hostilities. The right o f action is, however, merely suspended and revives on the restoration of peace. The Court may apparently take notice of the fact that a plaintiff is an alien enemy even though the fact is not pleaded." The practical application of the above rule is found in the cases of Geiringer v. Swiss Bank Corporation ((1940) All E L R 406), Hank Voor Handel En. Schezpvaart N. V. v. Slatford and another (152 All E L R 956) and Arab Bank Ltd. v. Barclays Bank ((1953) A11 E L R 226). The position in America with regard to the same rule is not materially different. The American Courts recognize the tendency towards a relaxation of the severity of the general rule precluding an enemy subject from invoking the jurisdiction of the Courts of the forum. The standing in Court of an enemy plaintiff is recognised to the extent that the Courts will permit him to take such action as may be necessary to preserve his rights, although he may not enforce them where the effect will be to augment the enemy resources. The Alien Enemy Custodian appointed by the President of America under the Trading with the Enemy Act may intervene and take over and continue the prosecution of an action instituted by one who has become an alien enemy. The weight of authority is to the effect that where an action has been commenced before the war by one who is a resident of the enemy country, the proceeding is only suspended, because of the temporary incapacity of the plaintiff to go on with the action, and that it will remain in abeyance until the impediment is removed by the termination of the war. According to this view the proceedings will be stayed merely, and not dismissed, unless the action itself ought not to be maintained. In so far as the appeal is concerned, an alien enemy against whom suit is brought may appeal from an adverse judgment; but the right of an alien enemy, who is t plaintiff in an action commenced before the outbreak of war, to appeal in such case is suspended until the conclusion of peace. (American Jurisprudence, Vol. 56, Chapter VII). In the light of the above discussion, it is amply clear "ha even under the general principles of the Law of War and 1 Peace, the writ petitions could be kept pending during the Emergency and in no case could be dismissed as incompetent. We have also taken note of the fact that the pendency of the writ petitions during the Emergency will not be of any advantage to the alien enemy by way of addition to the enemy's war potential. Even if the writ petitions were to be disposed of on merits, one reality cannot be ignored that the jurisdiction under Article 98 of the Constitution is discretionary. And we are certain that while exercising the discretion in the matter, as is before us, all the principles, discussed above will be kept in view. Thus there is check, against any loss or disadvantage to our realm, is Article 98 of the Constitution in the form of it being a discretionary jurisdiction. In any case, provision in para. 5 of the Enemy Property (Custody and Registration) Order, 1965, as to exemption from attachment, seizure or sale in execution of any decree or order of any Court or authority, of the enemy property vesting in the Custodian of Enemy Property, is a complete safeguard against any loss to the realm in any form whatsoever.

14. In the light of the above discussion, the orders by the learned Single Judge cannot be sustained and the same are set aside in terms already announced on 7th February 1969, in our short order : "that the writ petitions will be treated as and continued to be pending in this Court". We further hold that the appellant has the locus standi to pursue the writ petitions and to file the Letters Patent Appeals. There shall be no order as to costs. A. E. Appeal accepted.