P L D 1960 (W (PLP)

7. The Custodian gave judgment on 15th April 1960 that the property was not an evacuee property. One of these writ petitions was filed on the 4th of April and the other on the 26th of April 1960. In the first writ petition which was heard on 4th April 1960, this Court, granted an injunction restraining respon dents 3 and 4 from challenging the case. On the 9th of June 1960 the date of hearing was fixed after vacation.

8. It appears that the Martial Law Authorities have represented that the case be heard at an early date so that the question whether they should proceed with the inquiry or not be decided.

9. When the case came up for regular hearing on the 11th July 1960 it was found that the Central Government had made a reference challenging the finding of the Custodian dated 15th April 1960 declaring the property as non‑evacuee, and the Central Government had agreed to withdraw this reference, but the Tribunal decided that the Central Government could not withdraw the reference and that the Tribunal itself had to decide it one way or the other. On 31st July 1960, the terms of the Tribunal expired, and the case came up for hearing on 1st August 1960. The position now is that there is no Evacuee Property Tribunal to hear any reference from Government under section 43‑A. The Central Government on their part have withdrawn the reference against the finding of the Custodian that the property is non- evacuee.

10. The learned A. A. G., however, contended on behalf of the State that a writ in this case could not be issued against the order of the Martial Law Authorities, as under the President's Post -Proclamation Order 1/1958 issued in October under section 2 (5), no writ could be issued against the Chief Administrator of Martial Law or any person exercising power or jurisdiction under the authority of either the Chief Administrator, Martial Law or the Deputy Chief Administrator, Martial Law. In this case the police were exercising jurisdiction under the authority of the Chief Administrator of Martial Law who had issued Regulation No. 49, and the Martial Law Authorities had directed the police to investigate a violation of Martial Law Regulation No.

49. Secondly, in this case the matter was only under investigation, and it was possible that the Martial Law Authorities may come to the decision themselves regarding the merits of the case, and no writ should be issued in a case where an inquiry by the police was ordered by the Martial Law Authorities, and was in its initial stages.

11. The learned counsel for the petitioners Mr. Sharifuddin argued that the President's Order I of 1558 did not bar the jurisdiction of the High Court to issue necessary orders in this matter. The police authority was in a similar position as the Special Judge trying cases under the Martial Law. A Special Judge had also been empowered under the Martial Law Regulation to try a case. He was deriving his authority from the Chief Martial Law Authority who had issued the Regulation. According to Mr. Sharifuddin if the enquiry was being taken up by the Martial Law Authorities themselves, it was possible to argue that the jurisdiction of this Court was barred, but where the ordinary police agency was being employed to investigate an offence under Martial Law Regulation, their position would be just the same as that of a Special Judge trying cases under the Martial Law having received authority from the Chief Administrator, Martial Law. As regards the investigation stage of the case, the learned counsel pointed out that the charge brought forward against the accused was only' in respect of their failure to disclose the evacuee property. It was made clear in para. 13 of the counter‑affidavit filed by the State that so far as this charge was concerned, the finding of the Custodian was final. If the Custodian had declared the property to be non‑evacuee, no further steps could be taken in respect of that property, and the Martial Law Authority or the police authority had no justification to investigate the matter further.

12. The learned A. A. G. however said that he would argue the case on merits after the preliminary issue was decided that the Court had jurisdiction to issue writ in this case.

13. I have heard the learned counsel, and in my view the police officers investigating this case to find out if an offence under Martial Law Regulations is committed are in the same position as the Special Judge trying a case under Martial Law Regulation One has to give a verdict, convict an accused and sentence him, in the other case the police officer had to decide whether a prima facie case is established against the accused. Both these agencies are working under the orders of the Chief Administrator of the Martial Law or officers under him.

14. Mr. Sharifuddin placed before me the following rulings :‑ (1) P L D 1960 S C (Pak.) 237 (Muhammad Ayub Khuhro v. Pakistan) ; (2) P L D 1960 Lah. 583 (Sher Muhammad v. Nasiruddin) ; (3) P L D 1956 Kar. 348 (Ebrahim Paper Mart v. Assistant Collector of Customs). In P L D 1956 Kar. 348 the decision is to the effect "Where the Customs authorities, evidenced an intention to proceed to apply the penal provision of the last clause of section 39 of the Customs Act against the petitioner in infringement of fundamental right and without any lawful authority, held it was a fit case for the issue of writ and relief by way of mandamus was the appropriate relief." This case was placed before the Court to show that this Court could interfere at a preliminary stage in any case and‑ a writ could be issued if it was found that there was an infringement of funda mental right and there was no lawful authority for taking of any action such as the issuing of a notice to pay. There are no funda mental rights now in existence, but the principle will apply where there is a patent infringement of the lawful right possessed by a citizen.

15. In the case, Sher Muhammad v. Nasiruddin, the same principle was accepted The Administrator, Municipal Committee, Raiwind, had directed the demolition of a construction under Martial Law Regulation. In this case it was held that the Municipality could not decide whether or not there was an encroachment on the Municipal land and the jurisdiction of the Custodian to decide whether the property was evacuee had not been ousted. It was also held in this case that mere assertion that action was taken under Martial Law Regulation or Order did not deprive the High Court of its jurisdiction to decide whether or not it had jurisdiction in the matter. What was prohibited was the questioning of the legality of a Martial Law Regulation or Martial Law Order.

16. In the case of Muhammad Ayub Khuhro v. Pakistan, their Lordships of the Supreme Court held that Courts could not call into question any Martial Law Regulation or Martial Law Order, which meant that the Courts could not declare a Martial Law Regulation or Order as invalid or ultra vires ; but the Courts could certainly call into question an order made under a Martial Law Order or Regulation. I am, therefore, of the opinion that an order purporting to have been made under Martial Law Regulation could be investigated into by this Court and a suitable order passed if it violated the principles of natural justice.

17. On the question whether this Court has jurisdiction to issue a writ at all, the judgment of their Lordships of the Supreme Court and also of this Court would show that what was not to be questioned was the Regulation or the Order itself; but an action taken under that Regulation or Order could be examined.

18. The learned A. A. G. referred to the following paragraph in Sher Muhammad's case "Where, in a writ petition, the plea taken by the respondent (Administrator of a Municipality) was not that the High Court could not question the legality of the Martial Law Regulation or Martial Law Order, but was to the effect that because respondent purported to act under a Martial Law Order, the Court could not look into the matter at all Held, that a person's assertion, and even his honest belief, that what he was doing fell within the four corners of a Martial Law Regulation or a Martial Law Order cannot deprive any Court of the jurisdiction to decide the question if it arises in a proceeding which the Court has jurisdiction to take. The argument that the High Court cannot issue any writ because action was being taken under a Martial Law Order can succeed only if the Court comes to the conclusion that the action intended to be taken was authorised by a Martial Law Regula tion or a Martial Law Order. If on the other hand, the Court comes to the conclusion that it was not so authorised the jurisdiction of the Court to pass an appropriate =order exists because by merely asserting that action was being taken under a Martial Law Regulation or a Martial Law Order no one can deprive any Court of its jurisdiction to decide whether or not it had jurisdiction in the matter." It is plain that in this case when the Custodian has held that the property is non‑evacuee, any investigation into the matter would be unauthorized under the Martial Law Regulation itself. This ruling therefore, does not support the case of the prosecution.

19. In Muhammad Ayub Khuhro v. Pakistan, their Lordships of the Supreme Court have further declared that in case an order for confirmation is to be passed by a Martial Law Administrator, and it is actually passed by the Deputy Martial Law Administrator, the order of confirmation would not be an order under the Martial Law, and was; therefore, not immune from attack, because the Court was not calling into question any Martial Law Order, but merely an order made by the Martial Law Authorities ; nor was the Court issuing a writ against any Martial Law Authority, a jurisdiction in respect of which had been expressly taken away by Article 2 (5).

20. In this case also there is no question of disputing the authority of the Martial Law Regulation. We have before us only a direction issued to the police by a subordinate Martial Law Administrator to investigate a case on the basis that it was an evacuee property, and the petitioners had failed to disclose it.

21. The petitioners have vehemently contested that the property is non‑evacuee, and their plea is supported by the order of the Custodian whose order is final. Even the Central Government have for all practical purposes withdrawn from questioning this judgment. Their Lordships' judgment, therefore, does not prohibit the assumption of jurisdiction by this Court ‑in this matter.

22. Moreover, the Division Bench ruling of this Court is quite clear that in case the Court comes to the conclusion that the action intended to be taken was not authorized, the jurisdiction) l of the Court exists. I order accordingly. A. H. Order accordingly.