P L D 1975 Supreme Court 397 (PLP)

ANWARUL HAQ, J.‑This judgment will dispose of Civil Appeals bearing Nos. 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19, 20, 21, 23,24, 27, 28, 35 and 45 of 1974 as well as No. I of 1975, which have come before this Court on a certificate granted by the High Court under clause (f) of Article 185(2) of the Constitution. They are directed against a consolidated judgment delivered by a Division Bench of the Lahore High Court on 19‑2‑1974, whereby Constitution petitions filed by the appellants were dismissed. These appeals raise common questions of law and fact in relation to the application and opera?tion of Martial Law Regulation 115, known as the Land Reforms Regula?tion, 1972 (hereinafter referred to as the Regulation), read with various Federal and Provincial amendments and additions made to it from time to time. Some of these appeal, namely, Civil Appeals Nos. 23, 39 and 40 of 1974, are barred by time in varying degrees but we would condone delay for the reasons stated in the relevant applications, as well as for the reason that's they involve substantial questions of law of public importance which have in any case to be decided in the other appeals before us., It is not necessary to state the facts of each case except to mention that in appeals bearing Nos. 6, 17, 19, 20, 21, 23, 24, 27, 28, 35 and 45 of 1974, the main question is regarding the validity of the gifts made, between the dates specified in paragraph 7(1)(b) of the Regulation, by the owners of agricultural land in favour of their grand children, nephews or married sisters, i.e., persons who do not fall within the category of their heirs. The common grievance is that the Punjab Land Commission, acting through its Officers at various levels, has rejected these gifts, with the result that the lands so gifted are being treated as belonging to the donors for the purposes of the application of the Regulation. In the remaining appeals the main grievance of the appellants is that the ceiling of maximum holdings of agricultural land fixed by paragraph 8 of the Regulation at 15000 produce index units, or 18000 units in some cases, has been illegally and unconstitutionally reduced by the President of Pakistan to 12000 units or 14000 units respectively by an Order issued on 25‑4‑1972. On behalf of the appellants concerned with the validity of gifts made between the specified dates, it was contended before the High Court:‑ (a) That the Provincial Statutes, namely, Punjab Ordinance XV of 1972, Act VI of 1973 and Act XI of 1973, which have avoided or invalidated gifts which would have been valid under the unamended paragraph 7(1)(b) of the Regulation, were ultra vires of the powers of the Provincial Governor and the Provincial Assembly as they legislated in a field which belonged to the Federal Legislature for the reason that the word "Land" as used in the Provincial Legislative List was not comprehensive enough to include land reforms: (b) That Ordinance XV of 1972 was also invalid for the reason that it violated the procedure contained in the proviso to clause (3) of Article 280 of the Interim Constitution for amending an existing law like the Martial Law Regulations, namely, by introducing or moving a bill in the Assembly with the previous consent of the President ; and (c) That Ordinance XV of 1972, being a temporary statute, could not amend a permanent law such as Martial Law Regulation No.

115. The High Court has repelled these contentions. It has held that the subject of land reforms would be included in the subject land as appearing in the Provincial Legislative List; that Punjab Ordinance XV of 1972 was not invalid simply for the reason that it was not moved in the form of a bill before the Provincial Assembly, as the proviso to clause (3) of Article 280 of the Interim Constitution could not have been intended to curtail the Ordi?nance‑making powers of the Provincial Governor, which were co‑extensive with those of the Provincial Assembly; that the said Ordinance had been pro?mulgated after obtaining the previous consent of the President as required by clause (3) of Article 280 and was, therefore, in order, and that Ordinance XV of 1972 having been repealed by Act XI of 1973, which was , validly made in accordance with the requirements of clause (3) of Article 280 of the Interim Constitution and given a retrospective effect, it was not necessary to examine the last contention that a temporary Ordinance could not amend a permanent law. The High Court has no doubt mentioned that the subject of land reforms had, subsequent to the enactment of Act XI of 1973, been placed in the concurrent list with retrospective effect from the commencing date of the Interim Constitution, yet in its opinion this constitutional change had no bearing on the validity of Punjab Act XI of 1973. On behalf of the appellants affected by the reduction in the maximum area of individual holdings of agricultural land, as brought about by the Order issued by the President on 25‑4‑1972 under paragraph 29‑A of the Regulation, it was urged in the High Court that Martial Law Regulation 128, by which paragraph 29‑A was inserted in Martial Law Regulation No. 115, was invalid as it was published in the Gazette of Pakistan on 22‑4‑1972, i.e., after the withdrawal of Martial Law under the proclamation issued by the Chief Martial Law Administrator on the 20th of April 1972; that even if Martial Law Regulation No. 128 be taken to have been made and brought into force with effect from the 20th of April 1972, it was nevertheless without lawful authority as Martial Law had ceased to be operative with effect from zero hour on the night between the 19th and the 20th of April 1972, as laid down in the Proclamation of withdrawal of Martial Law; that if Martial Law Regulation No. 128 had come into force on the 20th of April 1972, then under Article 280(3) of the Interim Constitution, it stood repealed with effect from 21‑4‑1972 for the reason that it was originally not mentioned in the Seventh Schedule to the Constitution in the list of Regulations which had been saved or exempted from repeal; that this defect was not validly cured by the promulgation of President's Order No. 1 of 1972 as the said Order was promulgated on the 20th of April 1972 without the President having first taken the oath of office on the 21st of April 1972 under the Interim Consti?tution; that in any case the subject of land having become a Provincial subject with effect from the commencing day of the Interim Constitution, paragraph 29‑A of Martial Law Regulation No. 115 should be construed as referring to the Governor of the Punjab instead of the President of Pakistan for the purpose of reducing the maximum limits of individual holdings pres?cribed in the original paragraph 8 of the Regulation; and that the various Constitutional Orders issued by the President were ultra vires of the powers conferred on him in this behalf by Article 279 of the Interim Constitution. Here again, the High Court has overruled all these objections as to the validity of the impugned legislation. It has found that Martial Law was with?drawn at midnight on the 20th of April 1972, and that Martial Law Regula?tion No. 128 had, been validly made on that date before the withdrawal of Martial Law. It has expressed the view that promulgation or publication of a Martial Law Regulation in the official Gazette was not a necessary ingredient of its validity and, therefore, publication of Martial Law Regu?lation No. 128 in the official Gazette bearing the date 22nd of April 1972 had no effect upon its validity. The High Court has also observed that Martial Law Regulation No. 128 having amended Martial Law Regulation No. 115, and paragraph 29‑A having already been added to the latter Regu?lation as a result of this amendment, there was no necessity for specifying Martial Law Regulation No. 128 in the Seventh Schedule as one of the Regulations saved from repeal; and that in any case if any such protection was necessary, then it was conferred on the said Regulation by President's Order No. 1 of 1972, which had been validly promulgated by the President of Pakistan on 21‑4‑1972 under the Interim Constitution. In recording this last conclusion the High Court has acted upon the evidence of a Joint Secretary to the Government of Pakistan to the effect that although President's Order No. I of 1972 bears the date 20th April 1972, it was actually signed on the 21st of April 1972, on which date the Interim Constitution had come into force. The High Court has further observed that the repeal of an amending law does not affect the amendments which might have been made thereunder in any other living statute. On the question of construing the word President as Governor in Paragraph 29‑A of Martial Law Regulation No. 115, the High Court has taken the view that it was neither necessary nor practicable to do so as the Individual Holdings Order made by the President was essentially of a Legislative nature and was intended to amend certain paragraphs of the original Regulation, which could only be done by the President for all the territories of Pakistan, and not by any Provincial Governor. According to the High Court, it was also necessary for the President to act under this paragraph as a persona designate, as the law‑maker had delegated the power to him and not to any Provincial Governor, and the subject of equal distribution of wealth and economic power and avoiding their concentration in a few hands was a subject which ought to remain in the hands of the President for its uniform administration throughout Pakistan. The High Court has then observed that the subject of land reforms having been brought on the Concurrent List with retrospective effect from the commencing day of the Interim Constitution, the President could certainly act under paragraph 29‑A of the Regulation to promulgate the Individual Holdings Order. Finally, the High Court has held that no fault could be found with the various Presidential Orders issued under Article 279 of the Interim Constitution, as they were within the scope of the powers conferred on the President by that Article. Besides the separate contentions, as noticed above, a common argument advanced in the High Court on behalf of the appellants of both categories was that the Provincial Statutes as well as the Individual Holdings Order were violative of Fundamental Rights as contained in Articles 21 and 22 of the Interim Constitution, and, therefore, void in terms of Article 7 thereof. The High Court, however, did not go into this question in view of the fact that at the time of the hearing of these cases the Proclamation of Emergency was still in force, and there was also a Presidential Order suspending the right to enforce Fundamental Rights. The High Court has also repelled the contention raised before it by some of the learned counsel to the effect that Martial Law Regulations Nos. 115 and 128 as well as the Punjab Statutes were un‑Islamic and had been promulgated without seeking the advice of the Islamic Advisory Council. It has remarked that the "directive princi?ples of policy" regarding the Advisory Council are not enforceable in a Court of law. In order to appreciate the nature of the controversy arising in these cases, it is necessary to refer to the relevant paragraphs of the Regulation, as well as to the subsequent amendments and additions made thereto by the Federal and the Provincial authorities from time to time. The Regulation was promulgated by the Chief Martial Law Administra?tor on 11‑3‑1972. Its preamble, which has a bearing on some of the argu?ments addressed as to its interpretation, is in the following words :‑ "Whereas Islam enjoins equitable distribution of wealth and economic powers and abhors their concentration in a few hands; And whereas it is in the supreme national interest to improve the economic well‑being of the peasantry, by making agriculture a profit?able vocation; Now, therefore, the Chief Martial Law Administrator is pleased to make the following Regulation." Paragraph 7 of the Regulation, in its unamended form, was as follows:‑‑ "

7. Certain transfers void.‑(1) Save as otherwise provided in this Regulation:‑ (a) The transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the twentieth day of December 1971, by any person holding immediately before that date an area of more than one hundred and fifty acres of irrigated land or three hundred acres of un-irrigated land or an area equivalent to fifteen thousand units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1969 and Rabi 1969‑70), whichever shall be greater shall be and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date : Provided that in the case of a person to whom the provisions of sub?paragraph (2) of paragraph 8 apply, no such transfer or creation of any right or interest or encumbrance shall be void unless he was holding on the said date an area more than eighteen thousand produce index units. (b) Save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner what so ever, by any person holding on first March 1967, an area equivalent to more than fifteen thousand produce index units (calculated on the basis of classification of soil as entered in the revenue records for Kharif 1966 and Rabi 1966‑67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before that date: Provided that nothing in this clause shall apply to an alienation made by a person in favour of his heir. Explanation I-‑For the purposes of this sub‑paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter. Explanation II.--‑Where any such transaction as is referred to in clause (b) of this sub‑paragraph has resulted in the transfer of any land or the creation of any right or interest in or encumbrance of any land in favour of a member of the owner's family, or the reversion of such land to such owner or member whether through the intermediation of a third person or otherwise, such transaction shall be deemed to be void, and the land so transferred or encumbered shall be deemed to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before such transfer or encumbrance. Explanation III.--‑In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors:‑ (i) Whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right, interest or encumbrance has been created. (ii) Under whose management the land has remained which is claimed to have been transferred or in respect of which any right, interest or encumbrance has been created. (iii) Who has been paying the land revenue and other charges in respect of such land. (iv) Who has been receiving the rent for or Batai share from such land. (2) If any question arises whether any transfer or other transaction is or is not void under sub‑paragraph (1), the decision of the Commission thereon shall, subject to the provisions of paragraph 29, be final. (3) Nothing in sub‑paragraph (1) shall apply to any transfer of land or the creation or any interest or right or encumbrance on any land made by a person who held on twentieth December 1971 land in excess of the permissible limits under paragraph 8, after he has surrendered to Government, in accordance with the provisions of this Regulation, the land in excess of such limits." Paragraph 8 of the Regulation, again in its unamended form was as under: "

8. Limits on individual holdings.--‑(1) Save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty acres of irrigated land or three hundred acres of un-irrigated land, or irrigated and un-irrigated land the aggregate area of which exceeds one hundred and fifty acres of irrigated land (one acre of irrigated land being reckoned as equivalent to two acres of un-irrigated land), or an area equivalent to fifteen thousand produce index units of land, whichever shall be greater. (2) Notwithstanding the provisions of sub‑paragraph (1), an owner may retain, out of the area of land he was holding immediately before the commencement of this Regulation, such additional area, if any, which would bring the total area retained by him to the equivalent of eighteen thousand produce index units, if on the twentieth of December 1971‑ (i) he owned an agricultural tractor, certified to be in good working order by an officer authorised by the Commission in this behalf; or (ii) there was installed on his land a tube‑well, of not less than ten horse power." Certain amendments were made in Paragraphs 7, 12 and 18 of the Regu?lation by Martial Law Regulation No. 121, promulgated on the 4th of April 1972. We are not concerned with Paragraphs 12 and 18 in the present cases. As regards Paragraph 7, in clause (b) of sub‑paragraph (1) the words "first March 1967" were substituted by "at any time during the period from the first day of March 1967 to the nineteenth day of December 1971 (both days inclusive)". A new sub‑paragraph (4) was then added to Paragraph 1 of the Regula?tion by Martial Law Regulation No. 126, promulgated on the 17th of April 1972, but this amendment is not relevant here. This was followed by Martial Law Regulation No. 128, purporting to have been made by the Chief Martial Law Administrator on the 20th April 1972, but published in the Gazette of Pakistan, Extraordinary dated the 22nd of April 1972. It added the following new Paragraph 29‑A to Martial Law Regulation No. 115 as amended by Martial Law Regulations Nos. 121 and 126:‑ "29‑A. Additional powers of the President.‑(I) If it shall appear to the President necessary or expedient in the public interest so to do, he may make an Order, to be notified in the official Gazette‑ (a) reducing the area of land permitted to be possessed or owned under paragraph 8, so however that‑ (i) such area shall in no case be equivalent to less than twelve thousand produce index units, or less than one hundred and fifty acres of irrigated land, or three hundred acres of un-irrigated land, or irrigated and un-irrigated land the aggregate area of which is less than one hundred and fifty acres of irrigated land (one acre of irrigated land being equivalent to two acres of un-irrigated land); (ii) such area in the case of a person to whom the provisions of clause (2) of paragraph 8 apply shall in no case be equivalent to less than fourteen thousand produce index units. (b) making such omissions from, additions to, modifications of or amendments to this Regulation, as may be necessary in consequence of such order. (2) When any Order is made by the President under clause (1), the provincial Commissions shall prescribe the form in which declarations may be filed by persons owning land in excess of the area permitted by the said Order, and shall specify the period within which such declaration may be filed. Provided that no such declaration shall be required from a person who has previously submitted a declaration under sub‑clause (a) of clause (1) of paragraph 12. (3) No order shall be made under clause (1) of this Article after the thirty‑first day of October 1972." In pursuance of the power conferred on him by the newly added Paragraph 29‑A, the President promulgated, on the 25th of April 1972; the and Reforms Limits on Individual Holdings Order, 1972 (hereinafter erred to as the Individual Holdings Order:‑ "

1. Short title and commencement.--‑(1) This Order shall be called the Land Reforms (Limits on Individual Holdings) Order, 1972. (2) It shall come into force at once.

2. Limits on individual holdings.

‑The maximum area of land permitted to be possessed or owned by any person, at any time, in any capacity, under paragraph 8 of the Regulation, ,shall not exceed one hundred and fifty acres of irrigated land, or three hundred acres of un-irrigated land, or irrigated and un-irrigated land the aggregate area of which exceeds one hundred and fifty acres of irrigated land (one acre of irrigated land being reckoned as equivalent to two acres of un-irrigated land), or an area equivalent to twelve thousand produce index units of land, whichever shall be greater: Provided that any person to whom the provisions of clause (2) of paragraph 8 of the Regulation apply, may retain, out of the area of land he was holding immediately before the 11th day of March 1972, such additional area which would bring the total area to be retained by him to the equivalent of fourteen thousand produce index units.

3. Amendment of the Regulation.‑--Throughout the Regulation‑ (a) fur the words "fifteen thousand produce index units", wherever occurring, the words "twelve thousand produce index units" shall be substituted ; and (b) for the words "eighteen thousand produce index units", wherever occurring, the words "fourteen thousand produce index units" shall be substituted.

4. Declaration.--‑Every person, who at any time during the period intervening between the first day of March 1967 and the twentieth day of December 1971 (both days inclusive), owned or possessed, in any capacity, an area of land exceeding twelve thousand produce index units, shall submit a declaration, in such form, to such authority, and by such date, as may be specified by the Commission within whose jurisdiction he owned or possessed such land, and for the purposes of such a declaration, the provisions of clause (2) of paragraph 12 of the Regulation shall apply." The next Federal enactment in the field is Act LXII of 1973, enacted ort the 13th of August 1973, which provides, inter alia, for regulating the constitution and functions of the Federal Land Commission, and also amends the definition of the term "family" as contained in the explanation, to sub‑paragraph (2) of Paragraph 11 of the Regulation. The last Federal enactment, which needs to be noticed, is Act XXX of 1974, which received the assent of the President on the 24th of April 1974. It has added a new clause (ee) in slab‑paragraph (1) of Paragraph 12 for the purpose of obtaining declarations from persons who, at any time after the commencement of the main Regulation, come to own or possess land in excess of the area permissible for retention under Part III of the Regulation. The Act has introduced certain other amendments also in the Regulation, but we are not directly concerned with them in the present cases. After the promulgation of the Interim Constitution of 1972, the various Provinces also started legislating in this field, ostensibly for the reason that the subject of land had been made a Provincial subject under that Constitu?tion. The Governor of the Punjab promulgated, on the 8th of August 1972, Ordinance XV of 1972, called the Land Reforms (Punjab Amendment) Ordinance, 1972, with the previous sanction of the President as required under clause (3) of Article 280 of the interim Constitution. It, inter alia, amended clause (b) of sub‑paragraph (1) of Paragraph 7 of the Regulation, but it is not necessary to reproduce this amendment here, as the Ordinance was, replaced, on the 28th of February 1973, by Punjab Act VI of 1973, which was given retrospective effect from 8‑2‑1973 on which date Ordinance XV of 1972 was stated to have lapsed by efflux of time in accordance with the provisions of clause (2) (a) of Article 135 of the Interim Constitution. Act VI of 1973 was itself replaced by the Punjab Act XI of 1973 enacted on the 21st of May 197

3. This Act was also given retrospective effect from the date of the expiry of Ordinance XV of 1972. By its second section it amended Paragraph 7(1)(b) of the Regulation in the following terms:‑ "

2. Amendment of Paragraph 7 of M. L. R. 115.‑--In the Land Reforms Regulation, 1972 ‑ (M L R No. 115), hereinafter referred to as the Regulation, in paragraph 7, in sub‑paragraph (1)‑ (a) in clause (b), for the proviso the following shall be substituted, namely: "Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be held by the Commission to be a bona fide transaction: Provided further that nothing in this clause shall apply to ? (i) any transfer of land or creation of any right or interest in or encumbrance on any land, by way of gift or otherwise, made by a person in favour of his heirs ; or (ii) any transfer of land or right or interest therein by way of gift made by a person in favour of his widowed or unmarried sister, who has not received her due share of ancestral land; or (iii) any transactions whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated"; and (b) Explanation II shall be omitted." Besides these Federal and Provincial amendments and additions to the Regulation, certain Presidential Orders of a constitutional nature were also promulgated in connection with the subject of land reforms. The first one in the field is Post Constitution Order No. 1 of 1972, published in the Gazette of Pakistan on the 21st of April 1972, providing that in the First and Seventh Schedules to the Interim Constitution, specifying laws saved from repeal, and protected from the operation of Fundamental Rights under clause (2) of Article 7 of that Constitution, the Martial Law Regulation No. 128 shall also be added to the entry relating to the Land Reforms Regulation, 1972, as amended by Martial Law Regulations Nos. 121 and

126. This Order was made by the President in exercise of the powers conferred on him by Article 279 of the Interim Constitution, and was obviously intended to supply an accidental omission. It was given effect from the commencing day of the Interim Constitution. Then came the Constitution (Third Amendment) Order (Post‑Constitution President's Order) VII of 1972 made by the President on 26‑12‑1972 and published in the Gazette on 29‑12‑1972. Article 2 of this Order amended Article 7(3)(b) of the Interim Constitution so as to confer immunity from the operation of Fundamental Rights on the laws specified in the First Schedule as amended by any of the laws specified in the same Schedule. Martial Law Regulation No. 128 and Punjab ordinance X.V of 1972 were included in the First Schedule to the Interim Constitution, On the 11th of July 1973, President's Order 16 of 1973 (Constitution Twelfth Amendment Order, 1973) was promulgated. Besides amending the proviso to Article 61 of the Interim Constitution, it added the subject of Land Reforms Regulation, 1972, as item 41 in Part II of the Concurrent Legislative List as contained in the Fourth Schedule to the Interim Constitu?tion. A suitable amendment was also made in Entry No. 20 relating to land in the Provincial Legislative List. By clause (2) of Article I of this Order, it was provided that "it shall come into force at once and shall be deemed to have taken effect on the twenty‑first day of April 1972". Finally, mention may be made of the Constitution (Thirteenth Amend?ment) Order, 1973 (President's Order 19 of 1973), promulgated on the 5th of August 1973. This Order was again given retrospective effect from the 21st day of April 1972, and was intended to clarify that the concurrent Entry No. 41 did not merely refer to the Land Reforms Regulation of 1972 but to the general subject of Land Reforms. A corresponding amendment was also made in Entry No. 20 in the Provincial Legislative List. The results achieved, or sought to be achieved, by the legislative and constitutional enactments reproduced above appear to be as under:‑ (1) Whereas under the original paragraph 7(1)(b) of the Regulation bona fide transactions of land, including gifts, were saved, subject to the effect of the proviso and the explanations appended thereto, the amendments introduced in the sail paragraph by section 2 of Punjab Act XI of 1973 precluded the Land Commission from holding any gift to be a bona fide transaction, unless the gift was made in favour, of the heirs of the donor, as defined in Explanation I, or in favour of a widowed or unmarried sister of the donor. In other words, except in the cases covered by the newly enacted second proviso to clause (b) no inquiry at all was necessary for the Commission to hold that the gift was not a bona fide transaction: Thus? the Provincial Act has invalidated, or rendered void, certain otherwise genuine transactions of gifts previously permitted by the Regulation. (2) Whereas under clauses (a) and (b) of paragraph 7(1) of the Regulation, the restrictions on the transfer of land or creation of any right etc., therein applied to persons holding areas equivalent to 15000 or 18000 produce index units, as the case may be, this ceiling or limit was lowered by the Individual Holdings Order issued by the President on the 25th of April 1972 with the result that persons owning areas equivalent to 12000 or 14000 produce index units (as the case may be) were brought within the ambit of these restrictions; and as a consequence certain gifts made before the promulgation of this Order were rendered void although previously they fell outside the purview of the Regulation. (3) A direct result of the Individual Holdings Order, 1972, was to reduce maximum area of land permitted to be possessed or owned by any person at any time in any capacity, under paragraph 8 of the Reputa?tion, from 15000 or 18000 produce index units to 12000 or 14000 units. To the extent of this reduction the owners of agricultural land were now obliged to surrender more area out of their holdings than was the case before the issuance of this Order. (4) All amendments made to Martial Law Regulation No. 115, and Martial Law Regulation 128, specifically, were given protection from the operation of Fundamental Rights and saved from repeal being . . . included in the First and the Seventh Schedules to the Interim Constitution, and such inclusion was given retrospective effect from the commencing day of this Constitution. (5) The subject of land reforms, which was a Provincial subject falling under the broad heading `land' according to the Interim Constitution as originally promulgated, was included in the Concurrent Legislative List with retrospective effect from the commencing day of that Constitution. ??? On behalf of the appellants concerned with the validity of gifts made by them, or in their favour, within the dates specified in paragraph 7(1)(b) of the Regulation, the validity of Punjab Act XI of 1973 has been challenged before us on the following grounds (a) That the subject of land reforms having been brought on the Con?current Legislative List with retrospective effect from the commencing day of the Interim Constitution and the Act being inconsistent with the provisions of an existing or a Federal Law, namely, Martial Law Regulation No. 115, it was necessary, for its valid enactment, to follow the procedure prescribed in Articles 143 and 280 of the Interim Constitution, but the Act did not receive the President's assent under the former Article, even though previous sanction of the President under clause (3) of Article 280 was obtained; (b) That the Act violates Fundamental Rights, embodied in Articles 21 and 22 of the Interim Constitution, inasmuch as it seeks to deprive the owners of agricultural land of valuable property without com?pensation, and also discriminates between the various classes of citizens, of Pakistan in the matter of depriv4tion of property and validity of certain transfer of land; and (c) That the Act contravenes a fundamental principle underlying the Interim Constitution, namely, the separation of powers between the three organs of Government by usurping the judicial or quasi? judicial functions of the Land Commission and its Officers; when it provides that certain transfers shall in no case be held by the Commis?sion to be bona fide transactions, although such a finding could only be recorded by the Commission after due inquiry in the light of the criteria contained in Explanation III to the original paragraph 7(1)(b) of the Regulation. A preliminary question wag raised by the learned Attorney‑General, supported by the learned Advocate‑General, Punjab, that several of the gifts involved in these appeals would have been hit even by the original paragraph 7(1)(b) of the Regulation in view of the provisions contained in Explanation If, appended to the said paragraph, and, therefore, in these cases it may not be necessary to examine the question of the validity of the Provincial Legislation. The learned Attorney‑General also pointed out that in some of these cases, particularly in Civil Appeal No. 6 of 1974, there had been no final adjudication by the Punjab Land COmmis3ion as to the bona fide nature of the gifts involved in terms of the original provisions of the Regulation, nor had there been any determination whether the donees fell within the definition of the term "family" as used in Explanation II. The learned Attorney‑General also contended that even for another reason it was not necessary to examine the vires of Punjab Act XI of 1973, namely, that Punjab Ordinance XV of 1972, having been validly enacted after obtaining the previous sanction of the President, as required under clause (3) of Article 280 of the Interim Constitution, was to be deemed to be an Act of the Provincial Legislature in terms of the proviso to clause (4) of Article 135, with the result that it did not lapse on the expiry of the period specified in clause (2) of the same Article. 1n the submission of the learned Attorney‑General, it was unnecessary for the Provincial Assembly to make Acts VI and XI of 1973 to replace Ordinance XV of 1972, as ail along the said Ordinance had continued to operate as an Act of the Provincial Assembly. An attempt was made by the learned counsel, appearing for the appellants to meet the first objection by arguing that the Explanation could not act in derogation of the generality of the provision contained in the main clause, which saved all bona fide transactions of land; and that in any case the word "family", as used in Explanation II could not be interpreted so as to include the grand children or a married sister of the owner of the land. It was also submitted that no useful purpose could be served by waiting for an adjudication by the Officers of the Land Commission as they were bound by the Provincial Statute. This last sub?mission appears to me to be correct. I also find that the submission made by the learned Attorney‑General, with reference to the proviso to clause (4) of Article 135 of the Interim Constitution is not tenable. Article 135 of the Interim Constitution is in the following terms:‑ "135.‑(1) If at any tine when the Provincial Assembly stands dissolved or is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may make and promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if an Act of the Provincial Legislature containing the same provisions would, under this Constitution, have been invalid unless, having been reserved for the consideration of the President, it had received assent of the President. (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor but every such Ordinance‑‑ (a) shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six weeks from the reassembly thereof, or if before the expiration of that period a resolution disapproving it is passed by the Provincial Assembly, upon the passing of that resolution; (b) may be withdrawn at any time by the Governor. (3) In clauses (1) and (2), references to the time when the Provincial Assembly is not in session and to the reassembly thereof shall be deemed to include references respectively‑ (a) to the time following immediately upon the dissolution of the Assembly; and (b) to the first assembly of the next. (4) If and so far as an Ordinance under this Article makes any provision which would not be valid if enacted in an Act of the Provincial Legislature assented to by the Governor, it shall be void: Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of a Provincial Legislature which is repugnant to an Act of the federal Legislature or an existing law with respect to a matter enumerated in the Concurrent Legislative List, an Ordinance promulgated under this Article in pursuance of instructions from the President shall be deemed to be an Act of the Provincial Legislature which has been resorted for the consideration of the President and assented to by him." It will be seen that this Article is intended to make provision for emergency or temporary legislation at any time when the Provincial Assembly stands dissolved or is not in session, and it is for this reason that clause (2) of this Article, while conferring en an Ordinance promulgated by the Governor the same force and effect as an Act of the Provincial Legislature, contem?plates that every such Ordinance shall be laid before the Provincial Assembly and shall cease to operate at the expiration of six weeks from re‑assembly thereof, or if before the expiration of that period a resolution C disapproving it is passed by the Provincial Assembly, upon the passing of that resolution. The same clause also provides that the Ordinance may be withdrawn at any time by the Governor. An Ordinance is, therefore, essentially in the nature of a temporary legislation, and its future operation is made conditional on the approval of the Provincial Assembly. The provisions contained in the proviso to clause (4) could not, therefore, be intended to confer permanency on an Ordinance, in violation of the clear stipulation contained in clause (2) of the Article. Apart from this basic objection, resting do the very nature of an Ordinance as a piece of temporary legislation, the proviso itself, as relied upon by the learned Attorney‑General, makes it clear that it has a narrow and limited purpose, namely, of meeting the requirement specified in the proviso to clause (2) of Article 143 of the Interim Constitution in relation to the enactment of provincial laws on subjects included in the Concurrent Legislative List. As that proviso does not make a separate or special mention of the manner in which an Ordinance shall be promulgated in the concurrent field, the proviso to clause (4) of Article 135 contains a special direction in this behalf, to the effect that an Ordinance containing provisions inconsistent with an Act of the Federal Legislature or an existing law with regard to a matter enumerated in the Concurrent Legislative List shall be deemed to be an Act of the Provincial Legislature which has been reserved for the consideration of the President and assented to by him, provided the Ordinance is made by the Governor pursuance of instructions from the President. Thus the proviso in question merely seeks to apply to an Ordinance the special stipulation contained in a subsequent Article on the subject of legislation in a Concurrent field, but does not have the effect of rendering the Ordinance promulgated by the Governor as a permanent Act of the Provincial Legislature for aid purposes. It is also to be observed that even on the factual plane the submission made by the learned Attorney‑General is not sustainable. It has already been stated, while giving the history of the relevant legislation on the subject of land reforms, that the Provincial Legislature treated Ordinance XV to have lapsed by efflux of time, and, therefore, it gave retrospective effect to Punjab Act VI of 1973 from the day the Ordinance ceased to operate in accordance with the provisions of clause 2 (a) of Article 135 of the Interim Constitution. By section 2 of Act VI, it was provided that the provisions of Ordinance XV of 1972, as well as of some other Ordinances specified in the Schedule to the Act, shall have effect as if they had been enacted in an Act of the Provincial Legislature, and shall continue in operation for a period of six months from the date of their expiry under the aforesaid Article. It, thus, becomes clear from the provision made in Act VI of 1973 that the Punjab Provincial Assembly did not regard Ordinance XV as being a piece of permanent legislation; on the contrary, it specifically laid down, in section 2 of this Act, that Ordinance XV shall continue in operation only for a period of six months with effect from the date on which it was to expire under clause 2 (a) of Article 135 of the Interim Constitution. This direction of the Provincial Assembly would take effect under clause (2) of Article

135. Similarly, Act XI of 1973, although enacted on the 21st of May 1973, was also given retrospective effect from the date of the expiry of Ordinance XV of 1972 in terms of clause (2) of Article 135 of the Interim Constitution. By this last Act, Act VI of 1973 in so far as it enacted the provisions of Punjab Ordinance XV, was repealed. It was further provided that every thing done, action taken or Order made under Ordinance XV, and its provisions as enacted by Punjab Act VI of 1973, on or after the 8th of August 1972, and before the enactment of Act XI of 1973 shall be deemed to have been validly done, taken or made. These facts leave no doubt in my mind that at no stage was Ordinance XV of 1972 treated as having become an Act of the Provincial Assembly for all purposes, simply for the reason that it had been promulgated with the previous sanction of the President as required by the proviso to clause (3) of Article 280 of the Interim Constitution. That was a requirement peculiar for the purpose of amending or repealing a Martial Law Regulation, and had no connection with the promulgation of an Ordinance in the Concurrent field. It could not be otherwise, as on that date the subject of land reforms was a Provincial subject and, there?fore, the provisions of clause (4) of Article 135 or of clause (2) of Article 143, were not attracted to the making of this Ordinance. In view, therefore, of the fact that Paragraph 7 (1) (b) of the Regulation stands substantially amended by Punjab Act XI of 1973, which has replaced V Ordinance XV of 1922 and Act VI of 1973, and the fact that the Punjab Land Commission and its Officers are undoubtedly deciding all cases of gifts with reference to the Provincial Statute, and not in accordance with the original provisions of Paragraph 7 (1) (b), it seems to me that it is necessary to examine the validity and vires of the Punjab Act. The necessity for examining the scope and effect of the unamended Paragraph of the Regulation would arise only if Punjab Act XI of 1973 is held not to have been competently made in accordance with the Constitution. As the first objection urged against the validity of the Punjab Act has reference to the provisions contained in clause (2) of Article 143 of the Interim Constitution, it would be profitable to reproduce here tie whole of this Article which deals with the question of inconsistency between Provincial laws and Federal laws as well as existing laws. This Article is in the following terms:--‑ 143.‑(1) If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact, or to any provision of an existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this Article, the Federal law, whether passed before or alter the Provincial law, or, as the case may be, the existing law, shall prevail, and the Provincial law shall, to the extent of the repugnancy, be void. (2) Where a Provincial law with respect to any of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the President, has received the assent of the President, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter: ?????????? Provided that no Bill or amendment for making any provision repugnant to any Provincial law, which, having been so reserved, has received the assent of the President, shall be introduced or moved in the National Assembly without the previous sanction of the President." As already stated, the submission made on behalf of the appellants is that on the promulgation of President's Orders 16 and 19 of 1973, the subject of land reforms became a matter enumerated in the Concurrent Legislative List with retrospective effect from the commencing day, with the result that from that day the Regulation must be deemed to have become either an earlier Federal law or an existing law, and, therefore, no Provincial law, repugnant to its provision, could be made without' reserving the same for the consideration of the President and without receiving his assent, notwithstanding the fact that the previous sanction of the President to amend the Regulation had been obtained in terms of clause (3) of Article

280. This argument raises the question of the true constitutional status of Martial Law Regulations, saved from repeal, at the time of the commence?ment of the Interim Constitution of 1972, which was in force when Punjab Act XI of 1973 was promulgated, namely, the 21st of May 1973. In accordance with the provisions contained in clause (1) of Article 28 of that Constitution, all existing laws were to continue in force, subject to the Constitution and with the necessary adaptations etc., until altered, repealed or amended by the appropriate Legislature. Clause (8) of this Article defines the term "existing laws" as meaning all laws (including ordinances, Orders‑in‑Council, Orders, rules, bye‑laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra‑territorial validity, immediately before the commencing day. Again, Article 290 defines "existing law" as meaning any such law as is referred to in clause (8) of Article

280. The same Article defines the terms "Federal Act" and "Federal Law" as meaning an Act passed or law made by the Federal Legislature, The terms "Provincial Act" and Provincial Law" are similarly defined by this Article as meaning an Act passed or law made by a Provincial Legislature, The combined effect of these definitions appears to me to be that the Interim Constitution contemplates three kinds of laws, namely, Federal Laws, Provincial Laws and existing laws. The first two laws are those which are made by the appropriate Legislature under the Interim Constitution, where as existing laws are those which are kept alive under clause (1) of Article 280, subject to the other provisions of this Article and the Constitution, irrespective of the source or authority from which they emanate. If, therefore, there was no other provision in this behalf. Martial Law Regulation 115, dealing with the subject of land reforms, would have to be regarded as an existing law, which could be altered repealed or amended by the appropriate Legislature in terms of clause (1) of Article

280. However, Article 280 contains a specific provision, namely, clause (3) for defining the status of Martial Law Regulations and Martial Law Orders. This clause provides that "all Martial Law Regulations and Martial Law Orders, except the Martial Law Regulations and the Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day, and on that date each Martial Law Regulation and the Martial Law Orders so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect as such." The proviso to this clause enjoins that "no bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President." This clause being a special provision regarding the status of subsisting Martial Law Regulations, and also containing an exceptional procedure for their amendment or repeal, will exclude the application of the general provisions contained in clauses (1) and (8) of Article 280 in so far as the future status and operation of Martial Law Regulations and Martial Law Orders are concerned. As a result, although ordinarily Martial Law Orders and Regulations, saved from repeal, would have continued in force as "existing laws", yet by virtue of this special provision they have to be deemed to be Provincial or Federal Acts, notwithstanding the fact that they have not been passed or made by any Legislature created or functioning under the Interim Constitution. Now, what is meant by the words "appropriate Legislature" as used in clauses (1) and (3) of Article 280 of the Interim Constitution? The words themselves are not defined in the Constitution, but it is clear that they are intended to describe the Legislature which would be competent, under the Interim Constitution to legislate on the subject dealt with by the g law in question. In case there be any doubt as to the nature of the subject‑matter of the law under consideration, the rule of "pith and substance" as alluded to by Cornelius, C. J. in The Province of East Pakistan v. Sirajul Hag Patwari (P L D 1966 S C 854) may be applied for determining its true nature. The subject of the distribution of legislative powers between the Federa?tion and the Provinces is dealt with in Chapter I of Part V of the Interim Constitution. The two Articles directly relevant for our present purpose are in the following terms:‑‑ "

137. Subject to the provisions of this Constitution, the Federal Legislature may make laws (including laws having extra‑territorial operation) for the whole or any part of Pakistan and the Provincial or Legislature may make laws for the Province or for any part thereof. 138.--(1) Nothwithstanding anything in the two next succeeding clauses, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Fourth Schedule (hereinafter called the Federal Legislative List). (2) Nothwithstanding anything in the next succeeding clause, the Federal Legislature, and, subject to the preceding clause, a Provincial Legis?lature also, rage power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the "Concurrent Legislative List)". (3) Subject to the two preceding clauses, the Provincial Legislature, has, and the Federal Legislature has not power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II to the said Schedule (hereinafter called the "Provincial Legisla?tive List"). (4) The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof." It will be seen that the Interim Constitution first defines the territorial jurisdic?tion of the Federal and the Provincial Legislatures, by laying down that the Federal Legislature shall have power to make laws for the whole or any part of Pakistan, including laws having extra‑territorial operation, whereas a Provincial Legislature may make laws only for the Province for which it is constituted or for any pact of that Province. Article 138 then proceeds to divide legislative subjects into three lists, namely, Federal, Concurrent and Provincial. This is a departure from the scheme of the 1962 Constitution, under which the Central Legislature had a limited power to enact laws ore matters included in the Third Schedule to the Constitution, while the Provincial Legislatures had residue of powers to enact laws on all other matters. The Interim Constitution, in fact, follows the scheme underlying the Government of India Act, 1935, and the abrogated Constitution of Pakistan of the year 1956. In respect of subjects included in the Federal List the Federal Legislature has, and the Provincial Legislatures do not have, the authority to enact laws on these matters. Similarly, in relation. to matters included in the Provincial List, the Provincial Legislatures have, and the Federal Legislature has not, power to make laws for a Province or any part thereof, although the Federal ‑Legislature may legislate on matters included in the Provincial List for those .territories or areas which do not form part of any Province. However, with regard to matters included in the Concurrent List both the Federal and the Provincial Legislature are competent to enact laws thereon. It follows, therefore, that in respect of a subject or matter falling in the Federal Legislative List, the appropriate Legislature is the Federal Legislature; whereas in respect of a subject included in the Provincial list, the appropriate Legislature would be the Provincial Legislature concerned. However, in respect of la us and subjects dealing with matters included in the Concurrent List, both the Federal and the Provincial Legislatures could be described as (being the appropriate Legislature. It was submitted by Mr. Sharifuddin Pirzada that as the Proclama?tion of Emergency issued by the President and Chief Martial Law Adminis?trator on the 23rd of November 1971, was to be deemed to be a Proclamation of Emergency issued under Article 139 of the Interim Constitution, as pro?vided by clause (8) thereof, it was possible to argue that the Federal Legislature had become the appropriate Legislature in respect of all matters included even in the Provincial Legislative List, and. therefore, Martial Law Regulation 115 was to be deemed to be a Federal Act in terms of clause (3) of Article 280 of the Interim Constitution, right from the commencing day, irrespective of the issuance of Presidential Orders XVI and XIX of 1973. Learned counsel submitted that this effect flowed from clause (1) of Article

139. I regret I see no substance in this contention. It is true that under clause (8) of Article 139 the Proclamation of Emergency issued on the 23rd of November 1971 is to be deemed to be a Proclamation of Emergency under the said Article, and it is also true that the life of this Proclamation has been extended from time to time, and that by the most recent constitutional amendments adopted by the National Assembly of Pakistan on the 12th of February 1975, the said Proclamation is to continue in force until revoked 'by a Resolution of the Parliament, yet this Proclamation has no effect on the determination of the "appropriate Legislature" for purposes of clauses (1) and (3) of Article 280 of the Interim Constitution. Clause (1) .of Article 139, which follows Articles 137 and 138, merely prescribes that if the President has made a Proclamation of 'Emergency, then notwithstanding anything contained in Articles 137 and 138, the Federal Legislature shall have power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List, or to make laws, whether or not for a Province or any part thereof, with respect etc any matter not enumerated in any of the Lists in the Fourth Schedule etc. Clause (4) of the same Article provides that nothing in the, Article shall restrict the power of a Provincial Legislature to make any law which under this Constitution it has power to make. This clause goes on to provide further for the resolution of a repugnancy arising between a Provincial law and a Federal Law made by the Federal Legislature in the Provincial field during the continuance of the Emergency, but we are not concerned with that aspect of the matter in the present context. Finally, clause (6) of Article 139 clearly contemplates that a law made by the Federal Legislature in a Provincial field, during the continuance of a Proclamation of Emergency, would cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to operate. A perusal of these provisions of Article 139, which is included in the Chapter dealing with the distribution of legislative powers between the Federation and the Provinces, clearly shows that they are in the nature of temporary expedients, intended for meeting a state of Emergency, but they do not alter the distribution of legislative powers and subjects as enumerated in the Fourth Schedule to the Interim Constitution with reference to the, provisions of Article 138 thereof. The distribution of legislative powers and subjects into the Federal List, the Concurrent List and the Provincial List continues to hold good even during an Emergency, with the only proviso that the Federal Legislature is given temporary powers to encroach into the Provincial field. The powers of the Provincial Legislature also remain intact under clause (4) of the Article. It follows, therefore, that these temporary provisions do not in any manner affect the determination of the appropriate Legislature for purposes of clauses (1) and (3) of Article 2,0 o: the Interim Constitution. That question must be answered with reference to the pro?visions contained in Article

138. The application of these conclusions does not present any difficulty in so far as existing laws are concerned, In terms of clause (1) of Article 289, they may be altered, repealed or amended by the appropriate Legislature, subject to the limitations and restrictions contained in clause (2) of Article 143, to which I shall advert presently, if an existing law deals with a subject included in the Concurrent List. However, interesting results follow when we turn to clause (3) of Article 280 in respect of Martial Law Regulations or Orders which deal with Concurrent subjects. It will be recalled that according to this clause Regulations or Orders, saved from repeal, are to be deemed to have become Acts of the appropriate Legislature and to have effect as such. As in matters borne on the Concurrent Legislative List both the Federal and the Provincial Legislatures are to be regarded as the appropriate Legislature, the same Regulation or Order could be deemed to be a Provincial as well as a Federal Act at the same time and to have effect as such. At first sight it does appear to be a rather unusual, if not art anomalous situation. It was accordingly suggested by the learned Attorney ?General that if the subject‑matter of the Regulation is borne on the Provincial as well as the Concurrent List, then it may be regarded as a Provincial Act; and, if on the other hand the subject is included in the Federal as well as the Concurrent List, then the law may be regarded as being a Federal Act. In support of this proposition, the learned Attorney‑General cited the instance of the very Regulation we are considering, namely, the Land Reforms Regula?tion. He submitted that the subject of land being a Provincial subject, the effect of Land Reforms having been included in the Concurrent List would be to make this Regulation a Provincial Act. On behalf of the learned counsel appearing for the appellants, it was strenuously contended that the anomaly arising in case of Martial Law Regulations or Orders dealing with subjects borne on the Concurrent List could be resolved only if they were to be regarded as existing laws as defined in clause (8) of Article 280, or deemed to be Federal Acts for the reason that they had originally been made by a Federal or Central authority, namely, the Chef Martial Law Administrator who had assumed powers to legislate for the whole of Pakistan. After giving my anxious consideration to the propositions advanced by both sides, I am of the view that it is not possible to accept either of them. Although there is some basis for the submission made by the learned Attorney‑General in respect of Martial Law Regulation 115, for the reason that the subject of land, which ordinarily would include land reforms but for the special provision made in this behalf by the Presidential Orders already mentioned, does form part of the Provincial Legislative List, but the test suggested by him does not appear to be applicable to other subjects included in the three Legislative Lists. From the language employed by the makers of the Interim Constitution in Article 138, the intention appears to be to divide legislative subjects into three distinct categories, and not to declare that certain subjects included in the Federal or the Provincial List shall be regarded as Concurrent subjects. While there may be some overlapping in the description of subjects used in the three lists included in the Fourth Schedule to, the Interim Constitution, this is purely incidental and perhaps inevitable in some cases, but cannot be made into a definitive test or criterion for determining the nature of a law for the purpose of clause (3) of Article

280. I have scanned the description of subjects included in the Concurrent Legislative List, and I cannot say that most of them already stand included in the Federal or the Provincial Lists, although undoubtedly with regard to some of them there is an element of overlapping. I consider, therefore, that the test suggested by the learned Attorney‑General, not being of uniform and general application, cannot be accepted for the purpose of deciding the Constitutional status of Martial Law Regulations or Orders. The two alternatives suggested by the learned counsel for the appellants cannot also be adopted, for the reason that they proceed in disregard of the specific provisions contained in clause (3) of Article

280. The Constitution--?makers were fully aware of the fact that by the definition included in clause (8) of the said Article Martial Law Regulations or Orders, saved from repeal, would be treated as existing laws and, therefore, kept alive and operative under clause (1) of the same Article, yet they proceeded to include a specific provision as to the status of these Regulations and Orders, and went a step further by providing a special procedure for their amendment or repeal. It seems to me, therefore, that, in the presence of clause (3) of Article 280, the Martial Law Regulations and Orders cannot be treated as existing law and must be assigned the status of a Provincial or a Federal Act enjoined by this clause. They cannot also just be regarded as Federal law as they do not fulfil the definition of that term as contained in Article 290 of the Interim Consti?tution, for the reason that they have not been made by the Federal Legislature as created or functioning under the Interim Constitution. I am, therefore, of the view that the anomaly created by the legal fiction contained in the deeming clause embodied in Article 280(3), remains, and it is possible to regard he same Martial Law Regulation or Order as being a Provincial as well as a Federal Act at the same time, if the subject‑matter thereof is included in the Concurrent Legislative List. When Act XI of 1973 was promulgated, the subject of land was mention? ed at Entry No. 20 in the Provincial Legislative List. The full description subject is "land that is to say, rights in or over land, tenures, includ?ing the relation of landlord and tenant and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached estates, treasure trove". It seems to me that this subject is clearly wide and comprehensive enough to include the subject of land reforms which, result, after all, are primarily concerned with rights in or over land, land tenures and it must transfer, alienation and devolution of agricultural land. As a result it must be held that on the promulgation of the Interim Constitution, on the 21st of April 1972, the subject of land reforms became a Provincial subject, and all future laws in that behalf for a Province or a part thereof could be competently made only by the provincial Legislature concerned and not by the Federal Legislature. For the same reason, Martial Law Regulation 115, as amended from time to time, was to be deemed to be a Provincial Act. It could, therefore, be competently altered, amended or repealed by the Provincial Legislature, subject to the requirement that the procedure contained in the proviso to clause (3) of Article 280 should be observed. Now, it is not disputed that the previous sanction of the President was obtained before introducing in the Punjab Assembly the Bill which later became Punjab Act XI of 1973. Thus, this Act was competently made by the Provincial Legislature, and became a valid Provincial Act on receiving the assent of the Provincial Governor on 21‑5‑1973. The question, however, is whether this Provincial Act, having been competently made in accordance with the provisions of the Constitution as obtaining on the day of its promulgation, has been retrospectively invalidated on account of the promulgation of President's Orders 16 and 19 of 1973 on the 11th of July 1973 and the 5th of August 1973 respectively, by which the subject of land reforms, and particularly, the Land Reforms Regulation 1972 has been brought on the Concurrent Legislative List as Entry No. 41 with effect from the commencing day of the Interim Constitution. We have seen that in regard to the validity of Martial Law Proclamations, Regulations, and Orders etc. and various actions taken thereunder, the Interim Constitution has made special provisions in Articles 280 and 281; and only Martial Law Regulations and Orders specified in the Seventh Schedule, were saved from repeal. In regard to their continued operation the interim Constitution has created a fiction to the effect that they should be deemed to be Acts of the appropriate Legislature, and a special procedure is then prescribed for their repeal or amendment, requiring the previous sanction of the President. It is clear that these provisions were intended not only to accord legal and Constitutional status to Martial Law Regulations and Orders, etc., which had been struck down by this Court in Asma Jilani's case (P L D 1972 S C 139), but also to ensure their effective future operation by prescribing the requirement of previous sanction of the President for their amendment or repeal, irrespective of the fact whether the subject‑matter fell in the Federal Legislative List, the Provincial List or the Concurrent List. It seems to me, therefore, that while considering, in terms of Arti?cle 143(2) of the Interim Constitution, the question of the validity of a Provincial law, containing provisions inconsistent with a Martial Law Regulation or Order, the provision contained in the proviso to clause (3) of Article 280 should also be kept in mind. It is undoubtedly possible to argue, at least theoretically, that the safeguard provided in the latter Article cannot be equated with that contained in clause (2) of Article; 143, but I venture to think that in substance they are capable of achieving the same result. Another matter to be borne in mind in this behalf is that, as observed by Hamoodur Rehman, J., as his Lordship then was, in The Province of East Pakistan, v. Sirajul Haq Patwari one of the cardinal principles of interpretation is that law should be saved rather than destroyed, and the Courts should lean in favour of upholding the constitutionality of a legislation. The power to strike down a law as unconstitutional must be exercised only when absolutely necessary. Judging the matter in the light of these principles and considerations, and assuming that Presidential Orders 16 and 19 have been validly promul?gated and are to be given full and unfettered effect from the commencing day of the Interim Constitution, clause (2) of Article 143 would still not apply in terms, as Martial Law Regulation 115 is neither an existing law, nor could it be treated as an earlier Federal law. At best it could be treated both as a Provincial Act and a Federal Act on account of the subject of land reforms having been included in the Concurrent Legislative List. Such being the case, it could not be held that the requirement of obtaining the assent of the President in terms of clause (2) of Article 143 of the Interim Constitution was necessarily applicable to the enactment of Punjab Act XI of 1973, even though it contained provisions obviously inconsistent with the original relevant Paragraphs of the Regulation. It, therefore, appears to me that Punjab Act XI of 1973 cannot be struck down for want of compliance with, a requirement that cannot be strictly spelt out from the relevant provisions, of the Interim Constitution, especially so when an equally effective procedure" applicable to the amendment or repeal of the Regulation itself has been followed for the enactment of this law. There is still another aspect of the matter, namely, the true effect of the retrospective inclusion of the subject of land reforms in the Concurrent Legislative List. Could it be the intention of the deeming provisions contained in the two Presidential Orders to invalidate Provincial laws which had been properly and competently made at the time of their enactment? When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd v. Finsbury Borough Council (1952 A C 109) namely: "Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." This observation has been referred to with approval in a large number of cases decided by the Courts in this sub‑continent, as mentioned by the learned Judges in the High Court. (See Commissioner of Income‑tax, Bombay Presidency v. Bombay Trust Corporation Ltd. (AIR 1930 P C 64), Agha Shaukat All v. Settlement and Rehabilitation Commissioner, Lahore (P L D 1965 Lah. 445). Begum B. H. Sayed v. Mst. Afzal Jahan Begum (P L D 1965 Lah 967), Begum B. H. Sayed v. Mst. Afzal Jehan Begum (P L D 1970 S C 29) and Abdul Hakim Khan v. Mrs. Doreen Barkat Ram (P L D 1973 Lah. 566). At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature bas created the fiction. As stated by James, L. J. in Levy Ex parte Walton, (17 Ch. D 756), a statement approved by this Court in Begum B. H. Sayed v. Mst. Afzal Jahan Begum when a statute enacts that something shall be deemed to have I/ been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to." Now, it is obvious that the Presidential Orders 16 and 19 of 1973 could not have been promulgated by the President of Pakistan to invalidate, with restrospective effect, valid Provincial laws made at a time when the subject of land reforms fell exclusively in the Provincial Legislative List and Martial Law Regulation 115 was to be deemed to by a Provincial Act under clause (3) of Article 280 of the Interim Constitution. On the contrary, as suggested by the learned Attorney‑General and the Advocate‑General, Punjab, the intention of these two Orders appears to have been to remove doubts about the validity of Martial Law Regulation 128 and to make effective provision for the functioning of the Federal Land Commission. This last intention is manifest from the enactment of Federal Act LXII of 1973 on the 13th of August 1973, i.e., soon after the promulgation of the two Presidential Orders. In these circumstances, the retrospective effect given by the two Presidential Orders to the new entry 41 added to the Concurrent Legislative List cannot be used to invalidate Punjab Act XI of 1973, even if we were to assume that Martial Law Regulation 115 had become, owing to the promulgation of these two Order, either an earlier Federal law or an existing law within the meaning of clause (2) of Article

143. Before I conclude this part of the discussion, I may make brief mention of a submission made by some of the learned counsel, who were also interested in challenging the vines of the Individual Holdings Order made by the President under Martial Law Regulation 128, that the two Presidential Orders, 16 and 19 of 1973, had not been validly made. However, this argument was not adopted by all the learned counsel for the obvious reason that if the two Presidential Orders were found to be invalid, the subject of land reforms would remain a Provincial subject, and the question of considering the effect of Article 143 on the validity of the Punjab Act would not then arise. The validity of the two Presidential Orders was attacked on the ground that they were ultra vires of the powers conferred on the President by Article 279 of the Interim Constitution, as these Orders had not been promulgated for bringing the provisions of the Interim Constitution into effective operation, or for removing difficulties arising in connection with the enforcement of this Constitution. Relying on the minority judgment in The Federation of Pakistan v. Saeed Ahmad Khan etc. (P L D 1974 S C 151) it was submitted that clause (c) of Article 279 must be read as being ancillary to the powers given by clauses (a) and (b) thereof, and not as conferring an independent power on the President of Pakistan to amend the Interim Constitution as and when be deems it necessary to do so. It was added that the amendment of the Interim Constitution was only possible after complying with the procedure and formalities prescribed under Article 96 of that Constitution. It may be conceded at once that the two Presidential Orders in question cannot be said to have been promulgated for the purpose of bringing the provisions Of the Interim Constitution into effective operation, or for removing difficulties arising in connection with its enforcement. They are accordingly not covered by clauses (a) and (b) of Article 279 (1). They have obviously been promulgated under clause (c) of the said Article. The arguments advanced before us with reference to the scope and application of clause (c) have been fully considered by this Court in the case relied upon by the learned counsel, and it only remains for me to say that I see no compelling reason to take a view different from the one adopted by the majority of the Court in that case, viz., that clause (c) is not controlled by clauses (a) and (b). Respectfully following that view, I would hold that the two Presidential Orders ire question have been validly promulgated under Article 279 of tire Interim Constitution. We may now proceed to consider the neat contention, namely, that Act XI violates Fundamental Rights embodied in Articles 21 and 22 of the Interim Constitution. It was stated that although the argument was raised in the High Court, the learned Judges did not think it necessary to examine the same on the view that at the time of the hearing of these cases the Proclamation of Emergency was still in force and there was also a Presidential Order suspending the right to enforce the Fundamental Rights. Relying on the decision of this Court in the case of Ch. Zahoor Ilahi (Criminal Petition No. 61‑P of 1973), decided on 17‑12‑1974), it was contended that the high Court was in error in refusing to examine this argument as under Article 7 (1) of the Interim Constitution, corresponding to Article 8 (1) of the 1973 Constitution, any law inconsistent with the Fundamental Rights shall, to the extent of such inconsistency be void, and that this injunction of the Constitution could not be and was not, suspended by the president even during the Emergency. It was next submitted that in any case the said Order of the President had since beer rescinded with effect from the 14th of August 1974, there was no longer any bar in the way of this Court enforcing these rights. It is correct that, by an Order made on the 13th of August 1974, the s' resident of Pakistan has rescinded his previous Order of the 14th of August 1 973, under clause (2) of Article 233 of the 1973 Constitution, by which the ‑right to move any Court for the enforcement of specified Fundamental Rights had been suspended for the duration of the Emergency. Accordingly, there is no longer any bar in the way of the Court enforcing these Fundamental Rights, and it is not necessary to examine the other contention raised on behalf of the appellants with reference to Article 7 (1) of the Interim Constitution or clause (1) of Article 8 of the 1973 Constitution. The validity of Punjab Act XI of 1973 is assailed on the ground that it violates Fundamental Rights embodied in Articles 21 and 22 of the Interim Constitution, which correspond to Articles 24 and 25 of the 1973 Constitution. 'The first mentioned Fundamental Right deals with protection of property rights in the following terms: "(1) No person shall be deprived of big property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles of, and the manner in which, compensation is to be determined and given." Clauses (3) to (5) of Article 21 of the Interim Constitution are not directly relevant in the present context and need not, therefore, be reproduced here. I am not persuaded that the changes brought about in Paragraph 7 (1) (b) of the Regulation by Punjab Act XI of 1973 are in any manner violative of this Fundamental Right. By declaring certain gifts to be void, or by directing that the Punjab Land Commission shall not treat certain gifts to be bona fide transactions, the Act does not, in terms, take away property from the owners thereof without compensation; on the contrary, tree result of these amendments is that the property remains in the ownership of the donor. The grievance of the appellants is that the owners shall have to surrender this property in terms of Paragraph 8 of the Regulation, but that result is not to be attributed to the Punjab Act. That is au incident of the provisions contained in Martial Law Regulation

115. The Punjab Act cannot be invalidated owing to certain consequences which ensue under another law. The learned Attorney‑General made a reference in this behalf to, clause (I) of Article 233. of the 1973 Constitution, which provides that "nothing contained in Articles 15, 16, 17, 18, 19 and 24 shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take to any executive action which it would, but for the provisions in the said Articles, be competent to m eke or to take, but any law so made shall, to the extent of the incompetency, cease to, have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force." He submitted that Article 24 of the permanent Constitution being in the same terms as Article 21 of the Interim Constitution, it would appear that during the Emergency the State could make laws in violation of the said Fundamental Right. This submission is, however, not directly relevant to the present controversy, as the Punjab Act was made at a time when the Interim Constitution was in force, and the corresponding provision contained in clause (2) of Article 139 of that Constitution did not include the Fundamental Right as guaranteed by Article 21 thereof. It would appear, therefore, that if the Act was in violation of Article 21 of the Interim Constitution, it could be struck down in terms of clause (1) of Article 7 of that Constitution. However, it is not necessary to pursue the point any further in view of the conclusion already reached by me that the relevant provisions of the Punjab Act do not offend against Article 21 of the Interim Constitution. 'The Fundamental Right, as embodied in Article 22 of the Interim Constitution was also pressed into service on behalf of the appellants. This Article provides that all citizens are equal before law, and are entitled to equal protection of law. It further enjoins that there shall be no discrimination on the bases of sex alone. It was submitted that the second proviso to Paragraph 7 (1) (b) of the Regulation, as introduced by the Punjab Act, sought to discriminate between a married sister on the one hand and a widowed or unmarried sister on the other, by providing that a gift made in favour of the former would be invalid, but not so when made in favour o the latter. It is well‑settled that the right relating to the equality of citizens is not ‑violated, if the discrimination proceeds on a rational classification, having relevance to the underlying object of the legislation. (See Progress of Pakistan Co. Ltd. v. Registrar, Joint Stock Companies, Karachi (P L D 1958 Lah. 887), in re Syed Akhlaque Hussain, Advocate (P L D 1965 Lah. 147), Naseem Mahmood v. Principal, King Edward Medical College, Lahore (P L D 1965 Lah. 272), Zain Noorani v. Secy. of the National Assembly of Pakistan (P L D 1957 S C (Pak.) 46) and Abendra Kishore Achharrya Chaudhry v. The Province of E. P. (1957 P S C R 1). Now, the proviso in question obviously rests on a rational basis, directly related to the underlying object of the legislation relating to land reforms, viz., a more equitable distribution of land, and avoiding its concentration in a few bands. A married sister of the owner of agricultural property is clearly in a different position from that occupied by an unmarried or a widowed sister who has not received any share in the' lands of her father, and who might ordinarily be entirely dependent upon her brother who holds ancestral agricultural property. The law, therefore provides that before such an owner is called upon to surrender surplus land under the Regulation, he would be permitted to make a gift in favour of such dependent females. This is a consideration which would ordinarily not apply in the case of a married sister, whose maintenance is the responsibility of her husband, and who may also be presumed to have partaken of at least some share in her father's property by way of dowry and marriage expenses etc. I consider, therefore, that the proviso is not inconsistent with Article 22 of the Interim Constitution. The last ground of attack on the validity of the Punjab Act now remain to be considered. It was submitted that the Interim Constitution, or for the matter of that, all Constitutions so far promulgated in Pakistan, have recognised the principle of the separation of powers between the three organs of the State, namely, the Legislature, the executive and the judiciary: and if any law violates this principle by usurping the functions of the judiciary, then to that extent it must be declared void. It was contended that the first proviso to paragraph 7 (1) (b) of the Regulation, as introduced by Punjab Act XI of 1973, was a clear usurpation of the judicial or quasi‑?judicial functions of the Punjab Land Commission and its Officers, as it pro?hibited them from declaring certain gifts to be bona fide transactions, even though on proper inquiry they might have reached a contrary conclusion in the light of the criteria embodied in Explanation III to the said paragraph. In support of this submission we were referred to Article 108, Corpus Juris Secundum and State v. Ziaur Rehman (P L D 1973 S C 49). Article 108 of 16 Corpus Juris Secundum, appearing on page 49& thereof, lays down that "generally under the principle of separation of powers, the Legislature is prohibited from encroaching on, or unduly burdening or, interfering with, the judicial department in its exercise of judicial functions." It goes on to say that "the Legislature cannot bar or restrict the power of the judiciary to determine questions of law, but the legislative formulation of a rule of law, in advance of litigation, which the Court is to apply to a set of facts proved before it, does not violate the principle of separation of powers, and the Legislature may enact a statute to modify, for the future, the ?law as declared by decisions of the Courts". The incidents of judicial power were examined at some length by this Court in the case of Ziaur Rehman. A distinction was drawn between jurisdiction and judicial power. It was observed that the power to interpret, construe and apply the law must be vested in the judiciary in a system where there is a trichotomy of sovereign powers. Jurisdiction of Courts was, on the other hand, defined as a right to adjudicate concerning a particular subject‑matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court. It was concluded that the ‑power to interpret a law or the Constitution could not be taken away from the judiciary. It will be seen, however, that all these considerations are relevant to the power of the judiciary as constituting an independent organ of the State; they are not germane to special or subordinate tribunals set up under various statutes for implementing administrative and legislative policies, involving determination of certain disputes or facts in a limited and well‑defined field. Such tribunals or functionaries may adopt judicial or quasi judicial procedures, but they cannot be equated with Courts of general jurisdiction comprised in the hierarchy of the judicial system of the country. The statute creating such special tribunals would obviously be competent to define their powers and the rules of law and procedure applicable to them. It is difficult to hold that such rules of law and procedure would amount to an encroachment on the judicial organ of the State. In fact, as stated in Corpus Juris Secundum, even in respect of regular Courts, the Legislature would appear to have the power to prescribe rules of law, of procedure and of evidence. Some examples of such special rules are to be found in the Pakistan Customs Act and the Prevention of Corruption Act, 1947, relating to the burden of proof, and raising of certain presumptions etc. against the accused. I am, therefore, of the view that the first proviso to para?graph 7 (1) (b) of the Regulation, as introduced by the Punjab Act, cannot be declared to be invalid simply because it lays down certain rules of law for the functioning of the Land Commission and its Officers. As a result, it must be held that Punjab Act XI of 1973 was competently made by the Provincial Legislature, in terms of the relevant provisions of the Interim Constitution then in force; that it cannot be retrospectively invali?dated on account of the promulgation of President's Orders 16 and 19 of 1973 whereby the subject of land reforms was included in the Concurrent Legislative List with effect from the commencing day of the Interim Consti?tution; that the provisions of the Act do not offend against Fundamental Rights enumerated in Articles 21 and 22 of the Interim Constitution; and that the Act does not suffer from any invalidity owing to encroachment on, or usurpation of the functions of the judiciary. The Punjab Land Commission and its Officers would, therefore, be acting within the law if they decide the question of the validity of gifts and other transfers of land made between the specified dates according to the amendments introduced by the Punjab Act in the relevant Paragraphs of the Regulation concerned. It is accordingly unnecessary to examine the scope and meaning of the original, unamended paragraph 7 (1) (b) of the Regulation. I now turn to an examination of the contentions raised on behalf of the appellants concerned with the reduction of maximum holdings of agricultural land, permitted under paragraph 8 of the Regulation, from 15000 or 18000 produce index units to 12000 or 14000 produce index units res?pectively by the Individual Holdings Order issued by the President on 25‑4‑1972. As already stated, the Individual Holdings Order was issued by the President under paragraph 29‑A of Martial Law Regulation 115, as added by Martial Law Regulation

128. It was submitted on behalf of these appellants: (i) That Martial Law Regulation 128 was invalid and ineffective as it was published in the Gazette of Pakistan on the 22nd of April 1972, i.e. after the withdrawal of Martial Law under the Proclamation issued by the Chief Martial Law Administrator on the 20th of April 1972; (ii) That if Martial Law Regulation 128 was made before the with? drawal of Martial Law then it stood repealed under clause (3) of Article 280 of the Interim Constitution, as it was not one of the Martial Law Regulations specified in the Seventh Schedule to the Constitution; (iii) That even if Martial Law Regulation 128, and consequently paragraph 29‑A of Martial Law Regulation 115, had been competently made, they could not be used to amend paragraph 8 of Martial Law Regulation 115, as such a procedure would be inconsistent with the special provision contained in clause (3) of Article 280 of the Interim Constitution for amending or repealing Martial Law Regulations and Orders; (iv) That, in the alternative, the subject of land reforms having become a Provincial subject, and Martial Law Regulation 115 being deemed to be a Provincial Act in terms of clause (3) of Article 280 of the Interim Constitution, the President could not promulgate the Individual Holdings Order, which would amount to legislating to a Provincial field; (v) That paragraph 29‑A was invalid for the reason that it amounted to excessive delegation of legislative power in favour of the executive; ??????????? (vi) That in any case Martial Law Regulation 128, paragraph 29‑A of Martial Law Regulation 115 and the Individual Holdings Order were void as they conflicted with Fundamental Rights as contained in Articles 21 and 22 of the Interim Constitution; and ??????????? (vii) That the Individual Holdings Order, being in the nature of sub? ordinate legislation, could not be given retrospective effect by the executive in the absence of specific stipulation to this effect by the law‑giver, and, therefore, it could operate only prospectively from the date of its promulgation. The High Court has found, as a question of fact, that Martial Law Regulation 128 was made on the 20th of April 1972, although it was published in an Extraordinary Gazette of Pakistan on the 22nd of April 1972. The finding of the High Court is based on the date appearing at the bottom of the Martial Law Regulation opposite the signatures of the Chief Martial Law Administrator as printed in the official Gazette. In the absence of any evidence to the contrary, the learned Judges were right in accepting this date in view of the presumption arising in, terms of illustration (e) to section 114 of the Evidence Act, namely, that judicial and official acts have been regularly performed. According to section 78(1) of the Evidence Act, the relevant issue of the Gazette of Pakistan, printed under the authority of the Federal Government, would be sufficient proof of its contents. I would, therefore, hold that Martial Law Regulation 128 was indeed made on the 20th of April 1972. The learned Judges in the High Court have rightly observed that publica?tion in the official Gazette was not a necessary pre‑requisite for the enforce?ment of a Martial Law Regulation, for all that the Proclamation of Martial Law dated the 25th of March 1969 says in this behalf is that "Martial Law Regulations and Orders shall be made by the Chief Martial Law Adminis?trator or any Officer or authority empowered by him, and shall be published in such manner as is convenient." The Proclamation of Martial Law does not make the validity or operation of a Martial Law Regulation dependent on its publication. It was contended at the Bar that as the Chief Martial Law Administrator had withdrawn Martial Law with effect from the: mid‑night between the 19th and 20th of April 1972, by mean, of a Proclamation made on the 20th of April 1972, and gazetted on the 22nd of April 1972, there was no longer any authority in him to issue Martial Law Regulations on the 20th of April 1972. This contention was also raised in the High Court, but was rightly repelled. In the first place, by a corrigendum published in an Extraordinary Gazette of Pakistan, dated the 21st of June 1973, the date of the Proclamation of withdrawal Martial Law has been corrected so as to read 21‑4‑1972. In the second place, the opening words of this Proclamation itself make it clear that it was being issued in implementation of the promise made by the Chief Martial Law Administrator and President of Pakistan to withdraw Martial Law on the enforcement of the Interim Constitution. That Constitu?tion came into force on the 21st of April 1972, and not on the 20th of April 1972. The Proclamation was, therefore, clearly intended to withdraw Martial Law with effect from the 21st of April 1972. Finally, as pointed out by the learned Judges of the Sind & Baluchistan High Court in Asad Ali v. Settlement & Claims, Commissioner, Karachi (P L D 1974 Kar. 345), the Proclamation of withdrawal of Martial Law was issued ex abundanti cautele as the Proclama?tion of Martial Law made on the 25th day of March 1969, stood revoked with effect from the commencing day of the Interim Constitution by clause (2) of Article 280 thereof. Even if, therefore the Chief Martial Law Administrator had not issued a Proclamation of withdrawal, Martial Law would have in any case come to an and on the commencing day with the enforcement of the Inter7m Constitution. It is, therefore, not correct to say that here was no power in the Chief` Martial Law Administrator to make Martial Law Regulation 128 on the 26th of April 1972. It is correct that Martial Law Regulation 128 was not mentioned in the Seventh Schedule to the Interim Constitution, as promulgated on 21‑4‑1972, and, therefore, it would ordinarily stand repealed with effect from that date in terms of clause (3) of Article

280. There are, however, several factors which militate against this position. In the first placer the effect of Martial Law Regulation 128 was to add Paragraph 29‑A to Martial Law Regulation 115, which thus became a part of the parent Regulation and it was, therefore, no longer necessary to specify Martial Law Regulation 128 separately in the Seventh Schedule so as to save it from repeal. The mention of Martial Law Regulation 115 in the Seventh Schedule must be taken to mean the Regulation as it existed immediately preceding the commencing day, and that would include all amendments which had been made in the Regulation from time to time. On this view of the matter, it was not necessary even to mention the amendments brought about in this Regulation by Martial Law Regulations 121 and

126. The omission to mention Regulation 128 would not, therefore have any effect on the continued operation of Paragraph 29‑A which had already become a part of Martial Law Regulation

115. In the second place, Article 295 of the interim Constitution clearly pro?vides that where a law (including a Martial Law Regulation) is repealed or is deemed to have been repealed by or under this Constitution, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect, or affect the previous operation of the law or anything duly done or suffered under the law. Assuming, therefore, that Martial Law Regulation 128 stood repealed under clause (3) of Article 280 it would still not affect the continued operation of Paragraph 29‑A of Martial Law Regulation 115 which bad been added to that Regulation by Martial Law Regulation

128. A similar question was examined by this Court in Mohammad Akhtar Hussain v. Government of West Pakistan (P L D 1970 S C 146) and it was held that the repeal of the amending Ordinance did not render ineffective the change brought about by it in the parent statute. Reliance for this pro?position was placed on Maxwell's Interpretation of Statutes (11th Edn., p. 389) and the previous decision of the Court in Mir Ahmad Nawaz Khan Bugti v. Superintendent Jail, Layallpur (P L D 1966 S C 357). It seems, therefore, that the omission of Martial Law Regulation 128 in the Seventh Schedule to the Interim Constitu?tion, as originally promulgated, had no bearing on the continued operation of Paragraph 29‑A of Martial Law Regulation

115. However, the doubt, if any, was set at rest by President Order No. 1 of 1972, promulgated on the 21st of April 1972, by which Martial Law Regulation 128 was added to tile First and the Seventh Schedules to the interim Constitution with effect from the commencing day. Some doubt was raised in the High Court about the date of promulgation of this Orer, which necessitated the filing of an affidavit by a Joint Secretary in the Prime Minister's Secretariat to the effect that although the Order, as printed, bore the date 20th of April 1972, yet actually it had been signed by the then President of Pakistan on the 21st of April 1972. The High Court has accepted this affidavit as depicting the correct factual position. Nothing was said at the Bar in derogation of this finding. It follows, therefore, that Martial Law Regulation 128 must be regarded as one of those Regulations, which stood included in the First and the Seventh Schedules from the com?mencing day of the Interim Constitution, in case such an inclusion was at all necessary. An attempt was made to challenge the validity of Presidential Order No. 1 of 1972 on grounds similar to those we have already considered in regard to the validity of Presidential Orders 16 and 19 of 1973. It is not necessary to discuss these points again, and it would suffice to observe that, apart from the fact that the Order in question could be made under clause (c) of Article 219 of the Interim Constitution, it was indeed an Order which could also be brought within the ambit of clauses (a) and (b) of that Article for the reason that it was intended to remove a doubt or difficulty arising in connection with the enforcement .of the Interim Constitution by clarifying the position of Martial Law Regulation 128 in terms of Articles 7 and 280 of that Constitution. The next contention that the amendment of Paragraph 8 of Martial Law Regulation 115 by the Individual Holdings Order promulgated under Para?graph 29‑A of the Regulation, is in contravention of the special procedure Prescribed in clause (3) of Article 280 of the Interim Constitution is mis?conceived. The Individual Holdings Order, promulgated by the President on the 25th of April 1972, cannot be described as an amendment or repeal of the parent Regulation ; on the contrary, it is an order made by the?‑President in pursuance of the provisions contained in the Regulation, itself. Clause (1) of Paragraph 8 of the Regulation, as originally promulgated, opens with the words "save as otherwise provided in, this Regulation . . . . . " Paragraph 29‑A, which was added to the parent Regulation by Martial Law Regulation 128, gave powers to the President to reduce the area of land permitted to be possessed or owned under Paragraph 8 of the Regulation. The Regulation thus contained a provision for reducing the ceiling prescribed in the original Paragraph 8, and any order made by the President in the terms of Paragraph 29‑A of the Regulation could not, therefore, be regarded as a repeal or amendment of the Regulation. It is,. therefore, clear that reference to the procedure contained in clause (3) of Article 280 of the Interim Constitution is irrelevant in this behalf. It was next contended that the subject of land reforms having become a Provincial subject on the promulgation of the Interim Constitution, and Martial Law Regulation 115 being deemed to be a Provincial Act in terms of clause (3) of Article 280 of that Constitution, the President had no power to promulgate the Individual Holdings Order as it would amount to legislating, in a Provincial field. It was submitted that the legislative powers of the President were clearly spelt out in clause (1) of Article 94 of the Interim Constitution as being restricted in the same manner as the power of the Federal Legislature to make laws, which would in turn attract the application of Articles 137 and 138 dealing with the distribution of legislative powers between the Federation and the Provinces. It was contended that with effect from the commencing day Paragraph 29‑A had clearly to be subordinate to the scheme of the Interim Constitution, as no sub‑Constitutional legislation could confer legislative powers on the President in a field which was forbidden to the Federal Legislature under Article

138. As a general proposition, it is indeed correct to say that a sub‑c6nstitu?tional legislation, continued after the enforcement of the Interim Constitution as an existing law or a Provincial or a Federal law, could not confer powers of legislation on the President in violation of the relevant Articles of the Constitution. It is also correct that Article 94 does indeed subject the Ordi?nance‑making power of the President to the like restrictions as apply to the power of the Federal Legislature to make laws. It is to be noticed, however, that the Individual Holdings Order, promulgated by the ' President on 25‑4‑1972, is not an Ordinance, and, therefore, it could not be subject, in terms, to the restrictions mentioned in Article 94(1). It would indeed be more appropriate to regard the provisions of Para?graph 29‑A, as amounting to a law conferring authority on the President, in terms of Article 61 of the Interim Constitution, to perform certain functions in the exercise of his executive authority. Article 61 was retrospectively amended by President's Order 16 of 1973, so as to read as under:‑ "

61. Subject to the provisions of this Constitution, the executive authority of the Federation extends to the matters with respect to which the Federal Legislature has power to make laws, including the exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan Provided that the said authority does not, save as expressly provided in this Constitution, or in any law, extend in any Province to matters with respect to which the Provincial Legislature has power to make laws." It would appear that in terms of this Article, a law can entrust functions to the President even in a field which may otherwise be exclusively Provincial, in nature. However, it is not necessary to dilate any further on this aspect of the matter, for the reason that the subject of land reforms was brought on the concurrent Legislative List with effect from the commencing day by Presi?dent's Orders 16 and 19 of 1973. While dealing with retrospective effect of these two Orders, in relation to the validity of Punjab Act XI of 1973, I have already stated that the purpose and object of the deeming clause has to be kept in view. It is obvious that one of the objects of giving retrospective effect to the inclusion of the subject of land reform in the Concurrent Legislative List must have been to validate all acts and actions previously made or performed by the President or any other Federal authority in this field. If therefore, there was any infirmity or incompetence attaching to the pro?mulgation of the Individual Holdings Order by the President under Para?graph 29‑A of the Regulation, it would stand cured with retrospective effect under the provision made by the two Presidential Orders just mentioned. It thus appears to me that the Individual Holdings Order, not being an Ordinance made by the President, was not subject to the restrictions contained, in clause (1) of Article 94 of the Interim Constitution; that it was in fact in, the nature of a function performed by the President in accordance with law in terms of the amended proviso to Article 61; and that in any case the subject of land reforms stood included in the Concurrent Legislative List with retrospective effect from the commencing day of the Interim Constitu?tion by virtue of the promulgation of President's Orders 16 and 19 of 1973. The validity of this Order is, therefore, not open to objection on, account of any want of power in the President to promulgate the‑?same. It was next contended that Paragraph 29‑A of the Regulation was invalid for the reason that it amounted to excessive delegation of legislative powers in favour of the executive. In support of this submission, reliance was placed on Sobho Gyanchundani v. Crown (P L D 1952 F C 29), and The Province of East Pakistan v. Sirajul Haq Pal wail. In the two cases relied upon by the learned counsel for the appellants, as well as in East & West Steamship Co. v. Pakistan (P L D 1958 S C (Pak.) 41), the doctrine of ?excessive delegation of legislative powers has been examined at consider-able length by this Court, and, therefore, it does not appear to me to be necessary to go over the same ground again. The position emerging from the separate? opinions delivered by the learned Judges appears to be that as a broad principle, under a written Constitution, based on the separation of powers, a Legislature cannot delegate its powers of making, modifying or repealing any law to an external authority. If it does so, it would be creating a parallel Legislature and abdicating its own legislative functions and authority. However, it is open to the Legislature to delegate to an outside authority 1 powers relating to the enforcement of an Act or its application to particular areas if certain conditions prevailed therein, The line of separation between the powers that have to be exercised directly by the Legislature itself and those that may be delegated is not capable of clear definition. The tendency, even in the United States of America, is towards the enlargement of the powers of delegation due to the growing complexity of the functions of the Mate the powers of delegation have, therefore, been held to vary not only with the scope of the authority of the delegating body, but also by the variety of the conditions and circumstances a particular law is intended to meet, and tire status rind authority of the body to which the power is delegated. Where the Legislature has sufficiently expressed its will and exercised its judgment as to the territorial extent scope and subject‑matter of the legislation, the provision of details particularly when such details are by their very nature ‑incapable of being laid down by the Legislature itself, can well be left to be done by another agency in whom the Legislature places confidence. When the Court is called upon to determine the vires of delegated legislation, enacted in implementation of the dictates of the Constitution, it should be guided more by the consideration to ensure that the intention of the Legislature is not frustrated. The absence of standards or guidelines in a statute would not necessarily render the statute unconstitutional while the conferment of un?controlled and arbitrary power on the delegate would render the statute void. It is generally accepted that no provision of law can fall within the rule against delegated legislation if it is based on a policy, discoverable from that provision itself, which has to be implemented by the person against whom the charge of unauthorised legislation is made. Viewed in the light of these principles, Paragraph 29‑A of Martial Law Regulation 115 cannot be regarded as being in tae nature of excessive delega?tion of legislative power in favour of an outside authority, namely, the Presi?dent of Pakistan. In the original Paragraph 8 of the Regulation, maximum area of agricultural holdings leas been fixed by tile law‑maker, and Paragraph 29‑A permits the President to reduce the permissible area in accordance with guidelines enumerated in the Paragraph itself, namely, that the maximum area shall in no case be reduced to less than 12000 produce index units or 150 acres of irrigated land or 300 acres of un-irrigated land etc. There is also a stipulation that in the case of a person to whom the provisions of clause (2) of Paragraph 8 apply, the maximum area shall in no case be equivalent to less than 14000 produce index units. The parent legislation thus provides clear guidelines as to the scope and limits of the power to be exercised by the President in this behalf. There is thus no question of excessive delegation .of legislative power in favour of the executive. We may no consider the next ground of attack, namely, that Martial Law Regulation 128, Paragraph 2a‑A of Martial Law Regulation 115 and the Individual Holdings Order Promulgated thereunder, are void on account of being in conflict with Fundamental Rights as contained in Articles 21 and 22 of the Interim Constitution. The argument has reference to clause (1) of Article 7 of the Interim Constitution, which prescribes that "any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency be void." Clause (3) of this very Article provides that its provisions shall not apply to any of the laws specified in the First Schedule as in force immediately before the com?mencing day, and no such law nor any provisions thereof shall be void on the ground that such law or prevision is inconsistent with, or repugnant to, any provisions of this Chapter. It has already been motioned elsewhere that Martial Law Regulation 115, as amended by Martial Law Regula?tions 121 and 126, was specified in the First Schedule to the interim Constitution. It is correct that Martial Law Regulation 128 was not originally so mentioned, both the provisions of this Regulation having already been incorporated as Paragraph 29‑A in Martial Law Regula?tion 115, it was indeed not necessary to mention this amending Regulation separately. According to clause (3)(b) of Article 7, immunity from the operation of Fundamental Rights was available to the laws specified in the First Schedule as in force immediately before the commencing day. Martial Law Regulation 115, as in force on this day, clearly included Paragraph 29‑A, as added by Martial Law Regulation

128. However, the doubt if any was removed, as already stated, by President Order 1 of 1972, which added Martial Law Regulation 128 in the First and the Seventh Schedules to the Interim Constitution with retrospective effect from the commencing day. It appears, therefore, that the provisions of Martial Law Regulation 128 and Paragraph 29‑A of Martial Law Regulation 11.5 are not open to challenge on this ground. The Individual Holdings Order having been promulgated in pur?suance, and in implementation, of these protected provisions, would be entitled to the same immunity. The immunity conferred by clause (3) of Article 7 of the Interim Cons?titution on the laws specified in the First Schedule to that Constitution, from the operation of Fundamental Rights, has been continued by clause (3) of Article 8 of the Permanent Constitution of 1973. As a result, it is not possible to strike down these laws on the ground of any inconsistency with any of the Fundamental Rights as contained in the Interim Constitution of 1972 or the permanent Constitution of 1973. It is, therefore, not necessary to examine whether the laws in question, or any provisions thereof, are indeed inconsistent with Fundamental Rights contained in Articles 21 and 22 of the Interim Constitution (corresponding to Article 24 and 25 of the 1.973 Constitution). The last point raised with regard to the validity of the Individual Hold?ings Order was that being in the nature of subordinate legislation, it could not be given retrospective effect by the executive in the absence of a specific stipulation to this effect by the law‑giver ; and, therefore, it could operate only prospectively from the date of its promulgation. As a general proposition this contention is unexceptionable. A statute is to be deemed to be retrospective, if it takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past and closed. It is a fundamental rule of interpre?tation that a retrospective operation is not to be given to a statute so as to impair existing rights or obligations, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. In other words, there must either be an express intendment or necessary implication regarding retrospective operation of the statute. As retrospective operation of a statute has repercussions on rights and obligations, which have already accrued under existing laws, this power must necessarily vest in the Legislature itself, so as to be exercised with restraint in the public interest. It is for this reason that the power to legislate with retrospective effect has never been accepted as being included in the power of subordinate Legislation under authority delegated by the Legislature. By its very nature, the delegation of legislative power to an outside authority must be limited in scope to the extent necessary for the proper exercise of its functions by the Legislature. It follows, therefore, that ordinarily the power of delegated or subordinate legislation cannot be exercised with prospective effect. A similar view was adopted by this Court in Rehmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633), in which it was held that a Rehabilitation) by the Government under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, could not have retrospective effect. I would, therefore, agree with the learned counsel for the appellants that the President, acting under Paragraph 29‑A of the Regulation, could not give retrospective effect to the Individual Holdings Order promulgated by him on the 25th of April 1972. A perusal of the Individual Holdings Order shows that the President has not given any direction that the Order shall operate retrospectively from a date earlier than that of its promulgation. It would seem, therefore, that the grievance of the appellants that the Order has been given retrospective effect by the President is not justified on the language of the Order itself. It was, however, submitted that by directing, in Paragraph 3 of the Order, that throughout the Regulation the lower figures of 12000 and 14000 produce index units shall be substituted for the higher figures of 15000 and 18000 respectively, the President has impaired vested rights which had already accrued to owners of agricultural land under Paragraphs 7 and 8 of the Regulation. It has to be noted, in the first instance, that clause (1)(b) of Paragraph 29‑A of the Regulation, under which the Individual Holdings Order was promulgated by the President clearly authorised the President to make "such omissions, or additions to, modifications of or amendments to this Regulation, as may be necessary in consequence of such Order". Paragraph 3 of the Individual Holdings order has clearly been made by the President in pursuance of this enabling clause included in Paragraph 29 of the Regulation. Even otherwise, the power of making consequential changes and modifications etc. would appear to be incidental, in order to avoid creating anomalies and contradictions in the working of the parent Regula?tion. It cannot, therefore, be said that the substitutions directed by Para?graph 3 of the Individual Holdings Order go beyond the power delegated to the President by the law‑maker. The two Paragraphs in question of the main Regulation, namely, Paragraphs 7 and 8, have already been reproduced in an earlier part of this judgment. It will be recalled that both these 1'rir;igraphs are intended to operate retrospectively. Paragraph 7(I)(a) declares void transfers of land made on or after the 20th day of December 1971 by persons holding immediately before that date an area in excess of the prescribed limits, whereas Paragraph 7(1)(b) similarly invalidates transfers made by these owners at any time during the 1st of March 1967 to the 19th of December 1971. It is correct that under these clauses of Paragraph 7, as originally promulgat?ed, the restrictions applied to persons owning or possessing an area equivalent to 15000produce index units or 18000 produce index units if they had installed a tubewell etc., but after the issuance of the Individual Holdings Order the restrictions now apply to persons owning an area equivalent to 12000 or 14000 produce index units respectively. It is, therefore possible to argue that certain transfers of gifts made between or before the specified dates have now been brought within the purview of Paragraph 7 which fell outside its provisions before the maximum area of agricultural holdings was reduced by the Individual Holdings Order. This is, however, an effect produced not by the Individual Holdings Order of its own force, but by the retrospective operation of the parent legislation. At best it might be possible to exclude the application of the reduced maximum area to cases which stood past and closed on the date of the promulgation of the Individual Holdings Order, namely, 25th of April 1972. If the declarations by the owners concerned were still pending finalization by the authorities of the Land Commission and no final orders had been passed thereon, then it would be difficult to extend any protection to such cases in view of the clear inten?tion of the law‑maker, expressed in Paragraph 7 of the parent Regulation, that the disability in the matter of certain transfers should operate retros?pectively. At any rate, these considerations do not affect the validity of the Individual Holdings Order which does not purport to be retrospective in its own terms. Coming now to the amendment made by the Individual Holdings Order in Paragraph 8 of the Regulation, the position is much simpler. Whatever the maximum area permitted to be owned or possessed under the original Paragraph, the maximum limits now stand reduced from the date of the promulgation of the Individual Holdings Order, and under Paragraph 4 thereof, fresh declarations would have to be filed by persons owning areas in excess of the prescribed maxima. These declarations could be prescribed by the President in terms of clause (2) of Paragraph 29‑A of the Regulation, as well as under Paragraph 12 thereof. No element of retrospectivity appears to be involved in the reduction of the maximum holding permissible under Paragraph 8 of the Regulation. Lastly, we may also take note of clause (ee) added to sub‑paragraph (1) of Paragraph 12 of the Regulation by Central Act XXX of 1974, namely, "declarations by persons who, at any time after the commencement of this Regulation have come, or come, to own or possess land in excess of the area permissible for retention under Part III". The effect of this new clause is to enable the Provincial Land Commission to direct specified classes of persons to submit the necessary declarations under Paragraph 12 of the Regulation. Clause (ee) of the said Paragraph clearly refers to persons who are brought within the ambit of the Regulation after its commencement. It would, therefore, apply to persons owning areas in excess of the reduced maxima prescribed by the Individual Holdings Order, irrespective of the fact whether the Order applies retrospectively or prospectively. In these circumstances, any argument as to a possible invalidity attaching to the Individual Holdings Order on account of its retrospective application, really becomes academic or irrelevant, for the reason that retrospective effect to the reduced maxima has been given by the parent Regulation as well as by the subsequent Act XXX of 1974 made by the Federal Legislature in a Concurrent field. As a result of the foregoing discussion, I would hold that Martial Law Regulation 128 was validly made by the Chief Martial Law Administrator ?on the 20th of April 1972, when Martial Law was still in force; that Martial Law Regulation 128 did not have to be specifically saved from repeal by being included in the Seventh Schedule to the Interim Constitution for the reason that it already stood incorporated in Martial Law Regulation 115 as Paragraph 29‑A thereof; that in any case the doubt, if any, as to its con?tinuance in force, was removed by the promulgation of President's Order 1 of 1972 with? retrospective effect from the commencing day; that this Order was competently made by the President under Article 279 of the Interim Constitu?tion; that it is a misconception to regard the Individual Holdings Order as being in the nature of an amendment of Martial Law Regulation 115, and, therefore, the requirement contained in the proviso to clause (3) Article 280 of the Interim Constitution was not attracted in this case that the Individual Holdings Order was competently made by the President in tile exercise of powers conferred on him by Paragraph 29‑A of the Regulation, and that in promulgating this Order the President did not transgress the power conferred on him by the Constitution, as his authority and powers were to be regulated, under Article 61 of the Interim Constitution, not only by the provisions of the Constitution but also by law, which term would include Paragraph 29‑A of the Regulation; that in any case the subject of land reforms had been brought on the Concurrent Legislative list with retrospective effect from the commencing day by the President's Orders and 19 of 1973, and, therefore, the Individual Holdings Order could he com?petently made by the President in the Concurrent field; that Paragraph 29‑A of the Regulation did not suffer from the defect of excessive delegation of legislative power in favour of the executive, as it contained within itself the guidelines and the limits which the President was required to observe as a delegate of the law‑maker; that Martial Law Regulation 128, Paragraph 29‑A of Martial Law Regulation 115 and the Individual Holdings Order were immune from the operation of Fundamental Rights in view of the inclusion of the parent Regulation, as it stood immediately before the commencing day, i.e., inclusive of Paragraph 29‑A, in the First Schedule to the Interim Constitution in terms of clause (3) of Article 7 thereof, and that the same immunity continues to be available to them under clause (3) of Article 8 of the permanent Constitution of 1973; that it is correct that subordinate legislation cannot operate retrospectively, and in fact there is no provision in the Individual Holdings Order directing retrospective operation, but this result flows from the retrospective operation of the provisions contained in Paragraph 7 of the main Regulation; and, finally, that so far as Paragraph 8 of the Regulation is concerned, there is no question of retrospective operation, as the maximum permissible holdings stand reduced in any case with effect from the date of the promulgation of the Individual Holdings Order. Beside these common submissions, certain additional points were raised by the learned counsel appearing in some of the appeals before us, and they may now be disposed of. In Civil Appeal No. 17 of 1974, an application was moved lay the vendees to be impleaded as parties for the reason that they were bona fide pur?chasers from the donees in whose favour the land in dispute had been gifted by the owner of the land. This application was, however, unnecessary for the reason that these vendees had also filed a separate appeal, namely, Civil Appeal No. 35 of 1974 which has been heard along with the others. These vendees had filed a writ petition in the High Court contending that the order of the Additional Chief Land Commissioner dated 9‑11‑1973 holding the gifts made by the original owner of the land to be void, was vitiated on account of the fact that the appellants were not heard even though their names had been brought on the revenue record under mutations of sale attested in their favour. The writ petition was dismissed by the High Court on 21‑3‑74, and the appellants were directed to appear before the Chief Land Commissioner, on the understanding that they would be heard. The appellants accordingly appeared before the Additional Chief Land Commis?sioner who treated their application as a revision petition, heard the appellants and dismissed the same on 4‑5‑

74. Aggrieved by this latest order, the appellants then moved a fresh writ petition in the High Court which was dismissed on 14‑5‑1974. Besides attacking the validity of the Punjab Act‑of 1973, learned counsel for these appellants submitted that their claim as bona fide purchasers from the donees should have been considered by the Additional Chief Land Commissioner in terms of the criteria contained in Explanation III to Paragraph 7 of the Regulation. He also contended that the provisions of Paragraph 7(1)(b) of Martial Law Regulation 115 were in conflict with the provisions contained in the Family Laws Ordinance of 1961 regarding the position of grand children of the donor. There is no merit in either of these submissions. The criteria spelt out in Explanation III to Paragraph 7(1)(b) are to be applied to determine the bona fide nature of the transfer effected by the original owner of the land, and if that transfer is void in terms of this Explanation, or under the main clauses of Paragraph 7 then no question would arise of examining any further the bona fides of the further transfers made by the donees in favour of third parties. In order to succeed in their claim, the appellants have first to show that their vendors, namely, the donees from the original owner, had acquired a valid title. Having failed in this behalf, the appellants have no locus standi in the matter. The second contention regarding the position of grand children of the donor is misconceived, for Explanation I to the original Paragraph clearly includes in the definition of an heir the sons and daughters of a deceased son and daughter of the owner. This is in accord with the provision made in the Family Laws Ordinance in this behalf. In Civil Appeal No. 27 of 1974, Mr. Ijaz Hussain Batalvi submitted that one of the gifts in dispute had been made by the owner of the land in favour of his daughter‑in‑law, and that it had been erroneously struck down by the Chief Land Commissioner in disregard of the fact that the land had been given to the donee in lieu of her dower, as the donor had stood as a surety at the time of the marriage. We find that this submission was not accepted, and the finding of fact recorded by the Chief Land Commissioner in his order dated the 19th of January 1974 was that this was a gift simpliciter. It was not open to the High Court to interfere with this finding in the exercise of its writ jurisdiction, as it was not shown that the finding was based on no evidence, or was the result of misreading of evidence, or ignoring of material evidence. Nothing has been said at the Bar to justify any inter?ference by us. It was submitted by Mr. Ijaz Hussain Batalvi that, in the alternative, the alienation was really in the nature of a gift to the donor's son, that is the husband of the donee. As this plea was not raised before the Chief Land Commissioner it cannot be allowed to be raised at this late stage. In Civil Appeal No. 21 of 1974, it was submitted by Mr. Fazle Mahmood that at the time of making the gift on 16‑3‑1969, the donor, Mohammad Ismail, was holding an area equivalent to less than 15000 produce index units, and, therefore, he would not have been hit by the prohibition contained in Para. 7(1)(b) of the Regulation if the area of maximum holdings of land had not been reduced by the Individual Holdings Order, 1972. He contended that in this case the gift made by the owner was a transaction, past and closed, which could not be affected retrospectively by the Individual Holdings order. I have already expressed the view that the Individual Holdings order, by itself, does not contain any provision for retrospective operation, but this result flows from the provisions contained in Paragraph 7 of the main Regulation. However, if there is any case in which the declaration filed by the owner had already been accepted and the gift treated as valid under the original provisions of the Regulation, it may be possible to hold that the matter could not be re‑opened on account of the reduction brought about by the individual Holdings Order. But the present case does not fall in that category, as the declaration was still under examination when the Individual Holdings Order was promulgated: and secondly, the averments made in the order passed by the Chief Land Commissioner on the 30th of March 1973, as well as in Paragraph 4 of the petition for special leave to appeal show that the donor, Mohammad Ismail, was hit even by the original provisions of Paragraph 7(1)(b) as his holding, at the relevant time, was more than 15000 produce index units. The contention raised by Mr. Fazal-e-Mahmood, there?fore, fails on the factual plane. As none of the contentions raised on behalf of the appellants has been found to be sustainable in law, all these appeals fail and are hereby dismissed. In view, however, of the fact that complicated questions relating to the interpretation of the Constitution were involved, I would leave the parties to bear their own costs. MUHAMMAD YAQOOB ALI, J.‑‑I agree. SALAHUDDIN AHMED, J.‑-I agree. Appeal dismissed.